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 ).
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 ). 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)