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CPL 360.25 (1) (e)

This is a proceeding wherein the defendant moves pursuant to CPL 330.30 and 370.10 for an order setting aside the verdict upon the grounds that (1) the court committed reversible error by improperly allowing the People’s challenge “for cause” of a prospective juror and the People’s peremptory challenges were ultimately exhausted before jury selection was complete; (2) the defendant was deprived of a fair trial because of the People’s prosecutorial misconduct during summation; and (3) improper conduct by a juror during deliberations, out of the presence of the court, may have affected a substantial right of the defendant.

The People oppose the defendant’s motion.

The defendant was charged by way of a simplified traffic information, with a violation of Vehicle and Traffic Law § 1192 (2) – operating a motor vehicle while intoxicated per se; that is a blood alcohol content of .08% or more by weight of alcohol in his blood, and Vehicle and Traffic Law § 319 (1)-operating a motor vehicle without insurance in January 2004.

After a two-week jury trial, the jury returned a verdict of guilty on the charge of Vehicle and Traffic Law § 1192 (2) – driving while intoxicated per se in February 2005.

The defendant filed the instant motion to set aside the verdict, pursuant to CPL 330.30 and 370.10 upon the above-mentioned grounds in May 2005.

The defendant has not been sentenced.

In the case at bar, during jury selection, a group of 14 prospective jurors were seated in the jury box, addressed by the court and questioned by the parties. At one point, the People requested that a prospective juror be excluded from service “for cause”. As said the prospective juror had served on a previous jury wherein the defendant, in the previous case, had been charged with Vehicle and Traffic Law § 1192 (2) which is the same one as the charge in the instant case.

The defense counsel questioned whether the juror had to be removed as a matter of law. The court indicated “yes.” The prospective juror was excused from service, by this court, “for cause,” as a matter of law, pursuant to CPL 360.25 (1) (e). After a discussion off the record, the defense counsel stated on the record that he did not consent to the court’s ruling. The court’s ruling was based upon the plain reading of CPL 360.25 (1) (e). The court found that said ruling was appropriate, especially in light of the recent change in the specific driving while intoxicated statute, in which the defendant was charged.

Prior to the end of jury selection, the People had exhausted all of their peremptory challenges. Moreover, before the entire jury panel was sworn, the defense counsel again stated its objection to the court ruling, allowing the People’s challenge “for cause,” pursuant to CPL 360.25 (1) (e).

CPL 360.25 (1) mandates the New York statutory grounds for challenges “for cause” of a prospective juror, in a criminal case involving charges by way of an information. CPL 360.25 (1) (e) reads, in pertinent part, that:

“A challenge for cause is an objection to a prospective member of the jury and may be made only on the ground that:

“He served on a trial jury in a prior civil or criminal action involving the same conduct charged; or where a prosecutor’s information was filed at the direction of a grand jury, he served on the grand jury which directed such a filing.

Here, the defendant interprets the phrase “same conduct charged” to mean that the prospective juror in the instant case served as a juror in an earlier proceeding involving the same conduct charged, with the same defendant. The People claim that the defendant did not preserve the issue for appellate review and that the court should apply the plain reading of the statute and conclude the “same conduct charged” to mean that the prospective juror served as a juror at a previous trial involving the same type of crime.

The first issue raised by the People is whether a motion to set aside a verdict, pursuant to CPL 330.30 (1), requires preservation of the objection, in the trial record, in order for the court to consider the motion to set aside the verdict.

CPL 330.30 sets forth the statutory grounds upon which a judge may set aside or modify a guilty verdict before sentence. The statute is applicable to the instant case, pursuant to CPL 370.10. Subdivision (1) of CPL 330.30 reads, in relevant part, as follows:

“Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.”

Thus, CPL 330.30 (1) permits a trial judge to set aside a verdict only as a matter of law. Appellate review on the law requires the issue be preserved as ruled in People v Thomas. Thus, a timely protest is an essential prerequisite for relief under a CPL 330.30 (1) claim of an error of law, unless the error has deprived the defendant of a fundamental right akin to People v Davidson, People v Padro and People v Antommarchi. A question of law is preserved for appellate review when the trial court is apprised of the objection and afforded an opportunity to cure the error as held in People v Wales. This court has found two appellate level cases which held that a timely objection to disqualify a juror is required during jury selection; otherwise no judgment would be safe from attack.

In the instant DWI case, the court finds that defense counsel had put this court on notice that the defense did not agree with the court’s ruling to allow the People’s challenge “for cause.” The record reveals that after this court made the determination to allow the People’s challenge “for cause,” the defense counsel stated to the court that we’re not consenting. Moreover, before the entire jury was sworn, defense counsel again made clear his objection to the court’s ruling. Thus, the court finds that the defendant did timely object to the court’s ruling.

In order to preserve an erroneous ruling for a challenge “for cause” during jury selection, the New York statutory scheme requires the People to have exhausted their peremptory challenges before completion of jury selection.

CPL 270.20 (2), applicable to the instant case pursuant to CPL 360.25 (2), reads, in relevant part that an erroneous ruling by the court allowing a challenge for cause by the people does not constitute reversible error unless the people have exhausted their peremptory challenges at the time or exhaust them before the selection of the jury is complete. Subdivision (2) of CPL 270.20 further states that the denial of a defendant’s for cause challenge is not reversible error unless the defendant has exhausted all peremptory challenges or uses a peremptory challenge against the disputed juror and later exhausts all such challenges.

The statute contemplates remedial action by the appellate court when the trial court improperly grants or denies a challenge for cause.

In the instant case, the record is clear that prior to the end of jury selection, the People had exhausted all of their peremptory challenges and thus the court’s ruling is preserved for appellate review.

Accordingly, this court will consider the defendant’s argument with regard to the court’s interpretation of CPL 360.25 (1) (e).

To Be Cont……

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