Opinion
14756 Ind. No. 4346/15 Case No. 2019–2901
12-02-2021
The PEOPLE of the State of New York, Respondent, v. Marcus THOMPSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), and Milbank LLP, New York (Sandhya Ramaswamy of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), and Milbank LLP, New York (Sandhya Ramaswamy of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Gische, J.P., Kapnick, Kern, Gesmer, Kennedy, JJ.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered February 13, 2019, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of two to four years, unanimously reversed, on the law, and the matter remanded for a new trial.
The record does not support the court's discharge of a juror and an alternate, over defense objection, as "grossly unqualified." The record establishes that the two jurors engaged in premature deliberations while on the subway by discussing the demeanor and testimony of witnesses and the age of the case. Initially, the court properly conducted an inquiry of the jurors themselves and confirmed that they had engaged in premature deliberations. However, it should have inquired further and ascertained whether they were unable to render an impartial verdict, rather than discharging them as grossly unqualified based solely on the conclusion that, by prematurely deliberating, they had violated the court's instructions not to discuss the case (see People v. Buford, 69 N.Y.2d 290, 298–299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ; People v. Vinson, 143 A.D.2d 702, 703, 532 N.Y.S.2d 889 [2d Dept. 1988], lv denied 73 N.Y.2d 897, 538 N.Y.S.2d 810, 535 N.E.2d 1350 [1989] ). "Premature deliberation by a juror, by itself, does not render a juror grossly unqualified" ( People v. Mejias, 21 N.Y.3d 73, 79, 966 N.Y.S.2d 764, 989 N.E.2d 26 [2013] ). The "grossly unqualified" standard for removal of a sworn juror is higher than that for a prospective juror, and "the record must convincingly demonstrate that the sworn juror cannot render an impartial verdict for him or her to be disqualified" ( People v. Spencer, 29 N.Y.3d 302, 310, 56 N.Y.S.3d 494, 78 N.E.3d 1178 [2017] ). Nothing express or implied in the jurors’ answers suggested that they could not render an impartial verdict in spite of their conversation and decide the case based solely on the evidence before them ( id. at 311, 56 N.Y.S.3d 494, 78 N.E.3d 1178 ).
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Because we are ordering a new trial, we need not reach defendant's remaining arguments.