Author Archives: Larry Cunningham

Credibility Determinations and Buford Inquiries

In People v. Kuzdzal (Ct. App. 5/8/2018) (DiFiore, C.J.) (4-1-1), defense counsel reported that a spectator—who was either the defendant’s girlfriend or friend—claimed that she heard two jurors referring to the defendant by a derogatory term (a “scumbag”) and that the same jurors laughed and made faces during the trial. However, there was an inconsistency as to when the alleged conversation took place; the spectator also changed her story. After questioning of the spectator, the trial court declined defense counsel’s request to make an inquiry of the jurors in question.

The Court of Appeals held that it was proper for the trial court to question the spectator first to ensure that “the jury proceedings were not ‘jeopardized by unauthorized invasions'” (quoting Remmer v. United States, 347 U.S. 227 [1954]).

The Court nevertheless emphasized the procedure set forth in People v. Buford, 69 N.Y.2d 290 (1987), for dealing with claims of juror misconduct:

We emphasize that our procedure set forth in Buford stands as the framework to evaluate sworn jurors who allegedly engaged in substantial misconduct preventing the rendering of an impartial verdict. Trial courts, when presented with some credible information indicating that a sworn juror may be grossly unqualified, must conduct a “probing and tactful inquiry” of the juror (see 69 NY2d at 299). However, if the trial judge determines, upon inquiry, that the allegation of misconduct is not credible, there is no reason to take the next step to address the nature of the alleged misconduct — whether it is premature deliberations, as in Mejias, or the preexisting bias of a juror. Unnecessarily confronting sworn jurors with unfounded, irrelevant, or incredible allegations of misconduct may impact the impartiality of the jury, and mandating such an intrusive procedure regardless of the particular circumstances of a case may only encourage untoward tactics intended to disrupt the proceedings. Accordingly, we must trust our trial courts to make the determination in the first instance as to whether to conduct an inquiry of a sworn juror. In so doing, a defendant’s right to an impartial verdict is properly balanced with the jury’s right to adjudicate “free from outside interference” (People v Rivera, 15 NY3d 207, 212 [2010]). Here, we conclude that the procedure followed by the trial court to first examine the spectator to ascertain the reliability of her allegation was not an abuse of discretion as a matter of law.

However, since the Appellate Division never exercised its factual review power to determine the “threshold issue” of whether the spectator was, in fact, incredible and, therefore, no Buford review was required, the Court remitted the case to that court for further proceedings.

Judge Wilson concurred with the result but would have analyzed the matter through the lens of “substantial misconduct” rather than “grossly unqualified to serve.”  See CPL 270.35.

Judge Rivera dissented.  First, she agreed with the Appellate Division that the lower court should have conducted a Buford inquiry of the jurors themselves. Second, she disagreed with the majority’s decision to remit the case to the Appellate Division for a factual review. Pointing to language from the Appellate Division’s opinion, Judge Rivera makes the case that the Appellate Division did consider the facts when reaching its decision that inquiry of the jurors was required. Judge Rivera also questioned what the Appellate Division is to do on remand, since it had concluded that there was “sufficient credible information before the trial court to require a Buford inquiry.”

This case illustrates the tough bind that trial courts are in when faced with claims of juror misconduct.  Make inquiry, and you risk disturbing the jury unnecessarily.  Don’t inquire, and the appellate courts will fault you for not following the proper procedure.  On balance, trial courts are wise to err on the side of inquiry, even if on a limited basis. (LC)

Gay/Trans Panic Defense

Eric Lesh, the executive director of LeGaL, the LGBT Bar Association of New York, and James Castle, of Cozen O’Connor, have an article in today’s New York Law Journal calling on the Legislature to pass proposed legislation to outlaw the “gay and trans ‘panic defense,” which they summarize as, “a blame-shifting strategy upon which those accused of LGBT murder think they can rely in order to rally the anti-LGBT biases of judges and juries and mitigate their perceived culpability.”  Essentially, the accused uses the sexual orientation or gender identity of the victim as a “reasonable explanation or excuse” to establish extreme emotional disturbance, dropping a Murder charge down to Manslaughter.

Lesh and Castle argue: Continue reading

Back in Business

After an almost seven year hiatus, the New York Criminal Law and Procedure Blog is back in business.  After becoming Associate Dean for Student Services, I took time off from blogging to focus on my “day job.”  A lot has happened since.  I went on to become Associate Academic Dean and, later, Vice Dean, where I was responsible for supervising nearly all of the “internal” operations of our school. I also got married and moved out to the wonderful community of Long Beach, NY. I recently stepped down from day-to-day administration, although I remain the Associate Dean for Assessment and Institutional Effectiveness and am the director of our Center for Trial and Appellate Advocacy.  Helping me with the blog are the Fellows of the Center.

The blog has a new look.  I’ve migrated it to WordPress (from TypePad).  The CTAA Fellows and I hope to post a few times a week on new cases, legislation, and news reports.  As always, I appreciate your feedback at  (LC)


In April, I was appointed Associate Dean for Student Services and given an important charge to develop a new, proactive, inclusive approach to career development. Unfortunately, the demands of this position have not left me with much time to devote to the blog. I am going to be taking a hiatus from posting for a while, so that I can devote my energy and time on career development projects. The blog’s archives will remain live, however. (LC)

New York Criminal Law in the News – Thursday, October, 27, 2011

  • Three likely Democratic Mayoral candidates boast they have been arrested for civil disobedience (New York Times)
  • At his fourth trial a man was found guilty for a 1996 double homicide (New York Law Journal)
  • One of the detectives in the Sean Bell shooting testified at his hearing (NY1)
  • A Long Island man was arrested after he punched his infant after he wouldn't stop crying (Newsday)
  • Some Staten Island residents who are frustrated with recent burglaries are preparing to arm themselves (Staten Island Advance)
  • Auto body shop helps police capture hit and run suspect (Buffalo News)
  • Upstate man shot in home invasion is recovering at the hospital (Democrat and Chronicle)
  • Police made more arrests in the fatal shooting that cost a mother of 13 her life (New York Post)
  • A 16-year-old was arrested and charged with burglarizing two homes (Syracuse)