N.Y. Comp. Codes R. & Regs. tit. 22 § 128.12

Current through Register Vol. 46, No. 45, November 2, 2024

Section 128.12 - Failure to respond to questionnaire or summons; procedure for noncompliance

(a) Inquiry. In exercising the powers set forth in section 502(d) of the Judiciary Law, the commissioner of jurors shall make inquiry of persons who do not respond to the juror qualification questionnaire or jury service summons to determine the reason for nonresponse and shall make reference to the power of a court to cite for contempt or the power of the commissioner of jurors to bring a proceeding for noncompliance, pursuant to section 527 of the Judiciary Law.

(b) Commencement of noncompliance proceeding. The commissioner of jurors may bring a noncompliance proceeding against a person who fails to respond to the juror qualification questionnaire or summons to appear for jury service by serving upon such person, either personally or by first-class mail, a notice of noncompliance in a form prescribed by the Chief Administrator of the Courts. The form shall provide that a response to the commissioner of jurors shall be made within 20 days after the date of service of the notice of noncompliance and that the respondent must either admit noncompliance or request a hearing. After 20 days have elapsed from the date of service, the commissioner of jurors shall file with the Supreme Court a copy of the notice of noncompliance with proof of service and any response thereto. The court, or a judicial hearing officer designated pursuant to Part 122 of this Title, shall review the material submitted and, where the person has failed to respond, or has admitted noncompliance, or has been found not in compliance after a hearing held pursuant to this section, may impose a penalty in accordance with section 527 of the Judiciary Law and shall issue an order fixing a date certain for jury service.

(c)

(1) Notwithstanding the provisions of subdivision (b) of this section, where a person has failed to respond and a default judgment is sought, an affidavit shall be submitted that additional notice has been given, at least 20 days before the entry of judgment, to the person who has failed to respond, by mailing a copy of the notice of noncompliance by first class mail to such person at his or her place of residence in an envelope bearing the legend "personal and confidential" and not indicating on the outside of the envelope that the communication is from a court, the commissioner of jurors or any other public officer or official. In the event such mailing is returned as undeliverable by the post office before entry of the default judgment, a copy of the notice of noncompliance then shall be mailed in the same manner to the person who has failed to respond at his or her place of employment, if known.

(2) The additional notice shall be mailed not less than 20 days after service of the notice of noncompliance pursuant to subdivision (b) of this section. An affidavit of mailing pursuant to this paragraph shall be executed by a person mailing the notice and shall be filed with the judgment.

(d) Hearing. Whenever a respondent served with a notice of noncompliance requests a hearing, the court or judicial hearing officer shall schedule such hearing and shall notify the respondent by mail at least 30 days in advance of the hearing date. The hearing shall be held before the court or the judicial hearing officer assigned to conduct the hearing, and the respondent may be represented by counsel. A finding of noncompliance shall be based upon a preponderance of the credible evidence presented. The charge of noncompliance may not be sustained if there is a finding of undue hardship or extreme inconvenience as set forth in section 517(c) of the Judiciary Law or for any other excuse based upon a good and sufficient cause. Rules of evidence shall not apply except those relating to privileged communications. Oral testimony shall be presented under oath. The court or judicial hearing officer may issue subpoenas to require the attendance at the hearing of persons to give testimony or to produce books, papers or other things relevant to the hearing. The court or judicial hearing officer shall cause a verbatim record of the hearing to be made by stenographic or mechanical means. If the charge is not sustained, the court or judicial hearing officer shall issue an order dismissing the charge, and shall fix a date certain for jury service by the respondent unless the respondent files an affidavit with the commissioner requesting postponement of or excusal from jury service in which case capacity for service then shall be determined by the commissioner pursuant to section 128.6 -a of this Part.

(e) Penalty. All penalties imposed pursuant to this section shall be payable to the appropriate commissioner of jurors, who shall transmit such payments to the county clerk for transmittal to the Commissioner of Taxation and Finance on a monthly basis no later than 10 days after the last day of each month.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 128.12