Category Archives: Criminal Procedure Law

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)

AT1 reverses 440 grant

In People v. Simon (App. Term 1st Dept. Aug. 31, 2011), the trial court granted (without a hearing) the Defendant's 440 motion, alleging ineffective assistance of counsel.  The Appellate Term found this was error.  

The Defendant alleged that he would not have pleaded guilty had his previous attorney not erroneously advised him to do so.  The Defendant included his own affidavit and an affirmation from his current attorney.  However, he did not obtain an affirmation from his previous attorney.  Since the People did not concede the facts giving rising to the 440 claim, it was error to grant the 440 motion without a hearing.  (LC)   

Another reversal for equivocal answers by juror

The Second Department reversed the conviction in People v. MacFarlane (2d Dept. 8/23/2011), because the trial court sat a prospective juror who had given equivocal answers to a question about police credibility.  The Defendant was on trial for Murder 2º.  During voir dire, the juror reported that several family members were police officers.  "The prospective juror expressed on two occasions her concern that she may give the testimony of a police officer more credence than she would to other witnesses. When asked if she would give no greater credibility to the testimony of police officers, the prospective juror replied, 'I would like to think that I can be fair, but it's hard.' When asked if she could evaluate the testimony of police officers in the same way as any other witness, the prospective juror answered, 'I would hope so.' Further, in response to a query from defense counsel as to whether she could be fair and impartial, the prospective juror stated, 'I'd like to think of myself as a fair person, but I — it's — I — I do give police officers a little more credence, I think, than I would other people.'"

Based on the juror's responses, the Appellate Division found that the juror should have been excused for cause.  

Lesson learned?  While it is frustrating for both jurors and attorneys, the latter must ensure that the former give unequivocal answers to questions about bias.  Jurors who remain on the fence about such an issue must be excused.  (LC)

COA reverses jury selection case in summary fashion

In People v. Johnson (Ct. App. 6/9/2011), a unanimous Court of Appeals—in a memorandum decision—reversed a defendant's conviction because of an error in jury selection.  The Defendant raised the insanity defense.  One of the prospective jurors said she wrote a college term paper on the insanity defense.  During subsequent questioning, she said that she was not sure if she could give both sides a fair trial and that she might be biased against the defense.  The Defendant exercised a peremptory challenge.

The court reversed because the trial judge should have conducted a further inquiry and either obtain an unequivocal assurance of fairness or excuse the juror for cause.  "Here, given the absence of follow-up questioning by the court after the juror expressed uncertainty concerning her ability to fairly consider a major issue in this case, the conviction must be reversed and the matter remitted for a new trial." 

Lesson learned?  Followup, followup, followup.  (LC)

Is 5 minutes enough time for voir dire?

While trial courts have wide latitude in controlling the tempo and timing of voir dire, that discretion is not absolute.  In People v. Steward (Ct. App. 6/7/2011) (Graffeo, J.) (5-2), the Court of Appeals held that the trial court abused its discretion by only permitting five minutes of questioning per round of voir dire.

The case stemmed from a robbery of a well known DJ.  Prior to jury selection, the trial judge informed the parties that they would each be given five minutes per round of voir dire.  The Defendant objected to the time limit during the first round of jury selection but not during the subsequent rounds.

The relevant statute states, "Each party shall be afforded a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications, but the court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror's knowledge of rules of law." (CPL § 270.15(c))  The court set forth a factors test to be applied in determining whether a particular time limit is reasonable:

It would be impossible to compile an exhaustive list of all the factors that might inform a trial court's determination of this issue. But, in most cases, relevant considerations would include: the number of jurors and alternate jurors to be selected and the number of peremptory challenges available to the parties; the number, nature and seriousness of the pending charges; any notoriety the case may have received in the media or local community; special considerations arising from the legal issues raised in the case, including anticipated defenses such as justification or a plea of not responsible by reason of mental disease or defect; any unique concerns emanating from the identity or characteristics of the defendant, the victim, the witnesses or counsel; and the extent to which the court will examine prospective jurors on relevant topics. Because voir dire is a fluid process and it is not always possible to anticipate the issues that may arise during examination of the venire, it is also incumbent on counsel to advise the court if any temporal limitation imposed relating to juror questioning is proving, in practice, to be unduly restrictive and prejudicial.

The five minutes imposed by the trial court in this case was shorter than the time limits previously upheld by the Court of Appeals.  Moreover, the Defendant was facing four serious Class B felony charges as well as other felonies.  The victim was a celebrity and many of the prospective jurors had heard of him.  The case also raised sensistive questions about self-help, as the victim had pursued his assailants after the robbery was completed.

The question of prejudice was made difficult by the record, which referred to each venireperson only as "prospective juror" and entire groups of prospective jurors were excused sua sponte.  "[H]ere, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies." 

The trial judge was Justice Ruth Pickholz.  (LC)