author: Chief Judge Kaye. Smith, J.

text:
    [665 NE2d 1041, 643 NYS2d 1]
    The People of the State of New York, Respondent, v Kenneth Page, Appellant.
    Argued February 14, 1996;
    decided April 2, 1996

      POINTS OF COUNSEL

      Milner & Daniel, New York City (Michael M. Milner of counsel), for appellant.
    The replacement of a juror after jury deliberations began and without the required written consent of appellant violated CPL 270.35 and the Constitution of the State of New York, and appellant’s conviction should therefore be vacated. (People v Ryan, 19 NY2d 100; People v Adamson, 108 Misc 2d 394; Cancemi v People, 18 NY 128; People v Ahmed,
      66 NY2d 307; People v Patterson, 39 NY2d 288; People v Eatmon, 136 AD2d 909; People ex rel. Battista v Christian, 249 NY 314.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Gliner and Robert M. Raciti of counsel), for respondent.
    Where defendant himself asked the trial court to substitute an alternate for an ill deliberating juror, was personally allocuted on thé record about his consent, and the court took procedural precautions including instructing the reconstituted jury to begin deliberations anew, the court’s failure to obtain defendant’s written consent to the substitution does not require reversal of his conviction. (People v Ryan, 19 NY2d 100; People v Strange, 194 AD2d 474, 82 NY2d 727; People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067; People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288, 432 US 197; People v McLucas, 15 NY2d 167; United States v Hillard, 701 F2d 1052, 461 US 958; Henderson v Lane, 613 F2d 175, 446 US 986; United States v Phillips, 664 F2d 971, cert denied sub nom. Myers v United States, 457 US 1136; United States v Lamb, 529 F2d 1153.)
   OPINION OF THE COURT

Chief Judge Kaye.

Under CPL 270.35, once the jury has commenced deliberations an alternate juror may riot be substituted for a regular juror unless the defendant consents to the replacement. The statute, moreover, specifies that such consent "must be in writing” and "signed by the defendant in person in open court in the presence of the court.” This case presents the question whether the defendant’s oral consent to the substitution is valid where there is no indication that the defendant signed a writing in open court memorializing that consent.

We conclude that the defendant’s consent must conform with the statutory mandate. The fundamental right to a jury trial guaranteed by the State Constitution includes the right to a jury of 12. Substitution of an alternate juror following submission of the case to the jury violates this right and is therefore impermissible unless the defendant has waived a jury trial (People v Ryan, 19 NY2d 100). Our Constitution explicitly demands that such a waiver be in writing (NY Const, art I, § 2). Because the requirement of written consent in CPL 270.35 embodies the constitutional waiver provision, oral consent to the substitution is invalid and the conviction should be reversed.

Facts

Defendant was charged with third degree grand larceny and unauthorized use of a vehicle for stealing Erik Moore’s car. Twelve regular jurors and two alternates were selected by the parties. One day during trial, a regular juror was unable to attend court. Without determining whether the juror’s absence would extend beyond that day, the court simply replaced him with one of the alternates, over defense counsel’s objection. Defendant raises no issue as to this substitution.

Upon submission of the case to the jury, defense counsel requested that the remaining alternate juror, Ms. McManus, not be released. The court thus retained the alternate, instructing her to refrain from discussing the case with anyone. After approximately four hours of deliberations, the jury foreperson became ill and asked to be excused. The court — this time following an extensive inquiry — determined that the ill juror was unable to continue and excused him.

Defense counsel informed the court that he had discussed the matter with defendant and, because of the substantial prior delays and defendant’s incarceration during the entire period, his client consented to substituting the alternate juror. After counsel’s acquiescence was placed on the record, the court asked defendant personally whether he consented to substituting the alternate and whether he had had sufficient opportunity to discuss this decision with his attorney. Defendant answered both questions in the affirmative. At no time, however, did the trial court obtain the defendant’s consent to the replacement in writing.

The court then substituted alternate juror McManus for the excused juror, instructing the jury to begin deliberations anew. As reconstituted, the jury resumed deliberations for less than an hour before being sequestered for the evening. The next morning, the jury found defendant guilty of both charges.

Defendant subsequently moved to set aside the verdict pursuant to CPL 330.30 (1), arguing in part that substitution of the alternate juror during deliberations without first obtaining the defendant’s consent in writing failed to meet statutory and constitutional requirements. The trial court denied defendant’s motion, finding that it would "flout the purposes of the waiver rule” to permit the defendant to seek replacement of the ill juror and then urge that his consent was insufficient (153 Misc 2d 870, 872). The Appellate Division affirmed, opining that "[t]o do otherwise would exalt form over substance” (210 AD2d 41).

Before this Court, the defendant continues to argue that failure to obtain written, signed consent to the substitution necessitates reversal of his convictions. The People counter that the statutory specification is a technicality that need not be followed so long as the record otherwise reflects knowing, intelligent and voluntary consent by defendant to the substitution. We cannot agree with the People that the directive to obtain consent "in writing” and "signed by the defendant in person in open court in the presence of the court” — requirements explicitly set forth both in CPL 270.35 and in our State Constitution — represent a technicality that can be disregarded.

Right to Trial By 12 Jurors

Article I, § 2 of the New York Constitution guarantees a criminal defendant the right to a trial by jury. This fundamental right "has been properly interpreted as guaranteeing the right to trial by jury as it had existed at common law” (People v Ahmed, 66 NY2d 307, 311). A legal jury according to the common law consisted of 12 persons (People v Cosmos, 205 NY 91, 96; Cancemi v People, 18 NY 128, 135). This Court has thus long recognized that under our State Constitution a person accused of a crime is entitled to determination by a jury of 12 (see, People v Ryan, 19 NY2d 100, supra; People v Mitchell, 266 NY 15; People v Thorn, 156 NY 286, 294; Stokes v People, 53 NY 164, 171-172).

Our Constitution originally made no provision for waiving a jury trial in criminal cases. The right to a trial by 12 jurors was considered such an essential component of the constitutional right to trial by jury that, like the latter guarantee, it was deemed absolute and could never be waived by either party — even where the defendant expressly requested and consented to a trial by fewer than 12 jurors (see, e.g., Cancemi v People, 18 NY at 138; see also, People ex rel. Battista v Christian, 249 NY 314, 319; People v Cosmos, 205 NY at 96). Members of the former Judicial Council even questioned whether the proposed constitutional amendment providing for waiver of jury trial by a criminal defendant would suffice to "legalize trial by jury of less than twelve men, as well as a complete- waiver of the jury,” deeming this an issue for subsequent judicial resolution (2d Ann Report of NY Jud Council, 1936 NY Legis Doc No. 48, at 100).

Waiver of Trial By Jury

In 1938, the Constitution was amended to provide that "[a] jury trial may be waived in the manner to be prescribed by law * * * by the defendant in all criminal cases, except those in which the crime charged may be punishable by death.” The amendment was intentionally silent as to the appropriate procedure for executing such waiver. As noted by the Judicial Conference, implementation of the amendment was left to the Legislature rather than specified in the Constitution itself; "that is, the specific methods of waiver, whether it should he made in writing, * * * are to be determined by the Legislature and fixed by statute” in order to "afford greater flexibility in the choice of method than if it should form a part of the Constitution” (2d Ann Report of NY Jud Council, 1936 NY Legis Doc No. 48, at 97 [emphasis added]; see also, People v Carroll, 3 NY2d 686, 691).

Later that same year, however, the People of this State sought to remedy the absence of safeguards accompanying this waiver provision (see, 2 Revised Record of 1938 NY State Constitutional Convention, at 1281). We therefore again amended our Constitution, this time adopting the current requirement that waiver of a jury trial be "by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” As was explained at the 1938 Constitutional Convention, proponents of the amendment believed "that there should be some restriction upon the right to waive, so as to assure the defendant an understanding of what he was doing, and it was proposed that the waiver must be made in writing and in court as a protection to the rights of the defendant” (id., at 1274).

Underscoring the importance of the writing and signature requirements, members of the Convention explained that "it is a human habit to think twice before one signs a paper.” Thus, a defendant who "is asked to put his name to a paper which tells him in writing that he has waived one of the greatest rights that a citizen has, will hesitate to do it” (id., at 1282).

The history of the constitutional waiver provision thus establishes that the requirement that the defendant execute a signed, written waiver was considered critical to securing a knowing, intelligent and voluntary waiver of the right to trial" by jury (see also, Galie, The New York State Constitution: A Reference Guide, at 37). With this in mind, we examine the development of CPL 270.35.

History of CPL 270.35

Section 358-a of the Code of Criminal Procedure — the statutory predecessor to CPL 270.35 — originally permitted the court to substitute an alternate juror only prior to commencement of deliberations and required that the alternate jurors be dismissed once the case was submitted to the jury. In People v Mitchell (266 NY 15, supra), this Court held that section 358-a did not violate the defendant’s fundamental right to a jury of 12.

In Mitchell itself, the alternates were discharged when the 12 regular jurors retired for deliberation. The Court explained that the defendant’s constitutional right to have his guilt or innocence determined by 12 jurors was fully protected since at no time did "either of these alternates attempt! ] in any way to influence any of the twelve” (People v Mitchell, 266 NY at 18). Consequently, "[t]his defendant was not tried by a jury of fourteen men. Only twelve participated in the rendition of the verdict and they are the same twelve originally selected for the performance of that service. Each heard all the evidence and at no time during the course of the trial did any one of them cease to function as a juror” (id.).

In an effort to avoid mistrials in lengthy trial proceedings, the Legislature in 1952 amended section 358-a, authorizing retention of the alternate jurors subsequent to submission of the case to the jury and substitution for a regular juror discharged during deliberations (see, People v Ryan, 19 NY2d at 102). The statute did not require any form of consent by either party prior to such substitution.

In 1966, this Court held in People v Ryan that, once deliberations had commenced, replacing a regular juror with an alternate pursuant to section 358-a violated the constitutional guarantee to trial by a jury of 12. In Ryan, an alternate juror was substituted for an ill juror after five hours of deliberation. The Court explained that this procedure amounted to deliberation by more than 12 jurors:

We believe that the Constitution of this State, as it has been construed, prohibits the substitution of an alternate juror — in effect a 13th juror — after the jury has begun its deliberation. While it may be difficult in an individual case to evaluate the extent to which a defendant may be prejudiced by such a substitution, we believe that, once the deliberative process has begun, it should not be disturbed by the substitution of one or more jurors who had not taken part in the previous deliberation and who had "cease[d] to function as” jurors. (People v. Mitchell, supra.) (Id. at 104-105.)

The Court, however, acknowledged that a defendant could waive the right to a jury trial — as well as the inclusory right to a jury of 12 — and thereby consent to substitution of an alternate for a deliberating juror, "by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense” (NY Const, art I, § 2). Although trial counsel in Ryan consented to replacement of a deliberating juror with the alternate, the Court rejected the People’s contention that consent by the defendants’ counsel amounted to an effective waiver (People v Ryan, 19 NY2d at 106).

When the Criminal Procedure Law was adopted in 1970, the Ryan holding was incorporated into section 270.35, addressing substitution of an alternate juror during deliberations. Section 270.35 provides that if any alternate jurors are available for service, the first alternate should replace the discharged juror. The statute, however, further directs, "if the trial jury has begun its deliberations, the defendant must consent to such replacement. Such consent must be in writing and must be signed by the defendant in person in open court in the presence of the court” (emphasis added).

Tellingly, the statutory procedure for consenting to substitution of a deliberating juror mirrors the requirements contained in the Constitution for waiving a jury trial — written consent signed personally by the defendant in open court and in the presence of the court. Indeed, the Staff Comment accompanying the legislative proposal for this section explains that it "seeks to comply with the Ryan opinion” (Commission Staff Notes, reprinted following NY Cons Law Serv, CPL 270.35, at 446; see also, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 270.35, at 453).

There can be no doubt, then, that the purpose of the specification in CPL 270.35 for consent memorialized in a writing signed in open court is to ensure that the State constitutional requirements for waiving a jury trial are followed before an alternate is substituted for a regular juror once deliberations have begun.

Application of the Law to the Facts

Here, the defendant orally consented on the record to substitution of the alternate juror after deliberations had commenced. The trial court, however, failed to obtain written and signed consent to the replacement, as both CPL 270.35 and the constitutional procedure for waiving a jury trial mandate. The People argue that the defendant’s oral consent nonetheless constituted a valid waiver of his fundamental right to a trial by 12 jurors.

"The most compelling criterion in the interpretation of an instrument is, of course, the language itself’ (People v Carroll, 3 NY2d at 689, supra). This is especially true as to the constitutional provision relating to waiver of jury trials, which we have described as "the deliberate product of a group of men specially selected for and peculiarly suited to the task of its authorship” (id.).

That the State Constitution itself unequivocally demands that waiver of a jury trial be accompanied by a written instrument signed by the defendant in open court before the Trial Judge thus compels the conclusion that waiver must be accomplished in that manner. Rather than leave the procedure to legislative determination, the current constitutional waiver provision sets forth "[t]he basic and necessary procedural requirements” (id. at 692). Such constitutional requirements are not lightly disregarded. To the contrary, express provisions of our Constitution should be vigilantly enforced and the rights they protect zealously guarded (see, e.g., People v Boston, 75 NY2d 585 [constitutional provision for waiving right to indictment by Grand Jury]; see also, People ex rel. Rohrlich v Follette, 20 NY2d 297, 300 [noting that Court is "scrupulous in enforcing compliance with the waiver provisions” of art I, § 2]).

The history of the waiver provision, moreover, directly refutes the People’s claim and the dissent’s conclusion that the constitutional command to obtain a writing signed personally by the defendant can be deemed a dispensable technicality. The framers specifically added the requirement of a written, signed instrument to article I, § 2 in order to ensure that criminal defendants understood the significance of giving up their fundamental right to a jury trial and its essential components. The signature and writing requirements were thus considered crucial to securing a knowing and intelligent waiver.

Consequently, the unambiguous language and history of the constitutional waiver provision lead inescapably to the conclusion that waiver of the right to jury trial procured other than "by a written instrument signed by the defendant in person in open court” is invalid.

Because the safeguards afforded by CPL 270.35 are identical to and coextensive with the constitutional requirements for valid waiver of a jury trial, failure to comply with the statutory requirement of written, signed consent results in substitution of an alternate juror during deliberations without an effective, constitutional waiver. Such substitution directly contravenes Ryan and infringes the defendant’s fundamental, constitutional right to trial by a jury of 12.

The dissenters urge that the holding of Ryan need not be "taken literally” (dissenting opn at 15), since the Ryan defendants were never consulted regarding the juror substitution. The Court’s holding in Ryan, however, was explicitly premised on the fact that the trial court "did not satisfy the constitutional requirements for waiver” of a jury trial (People v Ryan, 19 NY2d at 106). Those constitutional requirements demand not only that the court obtain a jury waiver from the defendant personally, but also that the court obtain a written waiver signed personally by the defendant. Alternatively, the dissenters would circumvent this plain language in the State Constitution and CPL 270.35 by holding that oral consent not accompanied by a signed, written waiver constitutes an "implicit waiver” of the constitutional and statutory requirements of signed, written waiver (dissenting opn at 16). Such circular reasoning, however, would effectively delete the express provision for signed, written waiver from our Constitution and the statute.

We note that the People’s reliance on Federal cases holding that substitution of an alternate juror once deliberations have commenced does not compel reversal is unavailing (see, e.g., United States v Hillard, 701 F2d 1052). Rule 24 (c) of the Federal Rules of Criminal Procedure directs that any alternate juror who does not replace a regular juror shall be discharged once the jury retires to deliberate and makes no provision for substitution after submission of the case to the jury. The right to trial by jury guaranteed by the Federal Constitution, however, does not encompass the common-law right to a trial by 12 jurors (see, Williams v Florida, 399 US 78, 86-103). Thus, improper replacement of an alternate for a deliberating juror in violation of rule 24 (c) does not implicate a constitutional right (see also, Fed Rules Crim Pro, rule 23 [b] [authorizing the court to permit a verdict by 11 jurors, without the consent of the parties, if it finds it necessary to excuse a juror for just cause after the jury has retired to deliberate]).

We further reject the People’s argument that the trial court’s instruction to the reconstituted jury to begin deliberations anew remedied the statutory and constitutional breach by guaranteeing that the verdict was rendered by only 12 jurors — the 11 regular jurors plus the alternate. Substitution of the alternate juror in the first instance was prohibited by CPL 270.35 and the State Constitution absent written, signed consent by the defendant. Unless these requirements were first met, any participation in the deliberations by the alternate juror was improper.

In light of the constitutional grounding of the statutory requirement that was breached, we are compelled to reverse the convictions here, notwithstanding the defendant’s oral acquiescence to the juror substitution. We note for the future that reversals of convictions — as well as potential abuse of the process — can be avoided by careful compliance with the explicit waiver requirements contained in the Criminal Procedure Law and the State Constitution.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Smith, J.

(dissenting). The issue presented on this appeal is whether the statutory requirement that a defendant agree in writing, to the replacement of a juror unable to continue deliberating with an alternate juror, requires a reversal and a new trial here. Under the unique circumstances of this case, I conclude that reversal is not required.

The defendant was charged with grand larceny and unauthorized use of a motor vehicle arising out of the theft of a Maxima automobile belonging to a stock broker, the complainant, who had purchased the car in August 1990 for $35,000. On November 19, 1990, soon after the complainant had lost a set of car keys, a witness saw defendant drive away in the Maxima with the codefendant, Willie Rodriguez, in the front passenger seat. About 10 minutes later, the police apprehended the defendant and codefendant in the car.

Just prior to the commencement of jury deliberations, defendant specifically requested that the trial court retain the alternate jurors in the event something should happen to any of the regular jurors. Four hours after the jury began deliberating, juror number one became seriously ill and asked to be excused. The trial court extensively questioned the juror and provided both attorneys with the opportunity to question him as well. Only the defense attorney chose to question the juror. The juror was then asked to retire for a few minutes and the following colloquy occurred:

"me. aidala: May we approach?
"the court: Yes.
"(discussion at the bench between court and COUNSEL OFF THE RECORD)
"the court: Yes, Mr. Aidala?
"me. aidala: Yes, your Honor, I’ve had extensive conversation with Mr. Page concerning this matter. As the Court may be aware, Mr. Page has been incarcerated on this case since November the 19th of 1990, and certainly he has a right to some resolution of it by this time. It’s supposed to be a speedy disposition. And parts of the delay is the fact that the prosecution improperly presented the case to the first grand jury. So, he has told me that he will consent to the alternate being substituted at this time and it’s with the understanding that in no way will his consent at this time be ever interpreted as acting as a waiver of any prior objections and mistrial motions, that all those prior mistrial motions and all the other motions still have the same legal effect as if there was no substitution of the alternate at this time.
"the court: All right. Mr. Aidala, it is my understanding that the substitution of an alternate which does require your consent and Mr. Paige’s [sic] consent in no way waives your previous mistrial motions or any other motion that you may have made. We did discuss this at the bench and it is my understanding that you are acting on reliance on my understanding of the law.
"mr. aidala: That’s correct, were that representation not made, Judge, then we would not consent to the replacement and we would obviously have a mistrial at this time.
"the court: All right. Mr. Aidala, do you now consent to the substitution of an alternate?
"mr. aidala: Yes, your Honor.
"the court: Mr. Page, do you consent to the substitution of an alternate?
"the defendant: Yes.
"the court: And, Mr. Page, have you had adequate opportunity to discuss this subject with Mr. Aidala, your attorney?
"the defendant: Yes.
"the court: Mr. Irwin, do you have any objection to the substitution of an alternate?
"mr. irwin: No.
"the court: All right. All right, let us first bring in [the juror] then we’ll excuse him, then we’ll bring in the jurors and the alternates.”

After this extended colloquy, the court seated the alternate juror and instructed the reconstituted jury to begin its deliberations anew. On December 19, 1991, defendant was convicted of grand larceny in the third degree and unauthorized use of a vehicle in the third degree.

Defendant then brought a motion to set aside the judgment of conviction and sentence on the grounds that the court substituted the sworn deliberating juror for the alternate juror, and without defendant’s written consent. Defendant’s motion was denied by Supreme Court, which held that substitution of the ailing juror without a written waiver did not invalidate the conviction because defendant insisted upon replacing the ill juror, and, after being questioned in open court, agreed to seating the alternate. The Appellate Division affirmed the substitution, holding that "[t]o do otherwise would exalt form over substance” (People v Page, 210 AD2d 41).

On appeal, defendant maintains that the replacement of a juror after the commencement of deliberations and without his written consent violated CPL 270.35 and the New York Constitution. The People counter that because (1) defendant asked the court to substitute an alternate for the ill deliberating juror; (2) the court took procedural precautions, including instructing the reconstituted jury to begin deliberating anew; and (3) defendant was personally allocuted on the record about his consent, the court’s failure to obtain defendant’s written consent to the substitution did not require reversal of his conviction.

The majority claims that reversal is required because substitution of an ailing juror with an alternate once deliberations have begun is implicated by the right to a jury trial guaranteed by article I, § 2 of the New York State Constitution. However, this claim is not supported by an examination of the 1938 Constitutional Convention where an amendment permitting the waiver of a jury trial was proposed. The record of the debates on the proposed amendment clearly indicates that the debaters wished to ensure that a defendant fully understood what he was doing when waiving a jury trial and that the court participate in such a waiver. These concerns are illustrated in two comments made by Mr. Sears during the debate:

"It was thought by the proposer of two amendments that there should be some restriction upon the right to waive, so as to assure the defendant an understanding of what he was doing, and it was proposed that the waiver must be made in writing and in court as a protection to the rights of the defendant. * * *
"The proposal is a very simple one. It is intended to protect the rights of the defendant, to assure him by the necessity for an approval by the judge of full opportunity to understand what he is doing. That is all that there is in this proposal, and we ask that that be advanced” (2 Revised Record of 1938 NY State Constitutional Convention, at 1274).

Nothing in the Constitutional Convention even remotely touches on the method for substituting an alternate juror after deliberations have begun, the narrower issue posed by this appeal. That is a problem of pure statutory construction, implementation and application.

It is true that we have previously suggested, in People v Ryan (19 NY2d 100), that an alternate juror cannot be substituted for any juror already on the panel once the jury has begun to deliberate. Ryan states:

"We believe that the Constitution of this State, as it has been construed, prohibits the substitution of an alternate juror — in effect a 13th juror — after the jury has begun its deliberation. While it may be difficult in an individual case to evaluate the extent to which a defendant may be prejudiced by such a substitution, we believe that, once the deliberative process has begun, it should not be disturbed by the substitution of one or more jurors who had not taken part in the previous deliberation and who had 'cease[d] to function as’ jurors. (People v. Mitchell, supra.)” (Ryan, at 104-105.)

While the foregoing excerpt from Ryan, taken literally, poses a high hurdle with respect to the substitution which occurred here, the only constitutional mandate for per se reversal is if defendants unknowingly, without understanding what they were doing, waived their right to a jury trial. That is not this case. Moreover, defendant’s waiver here did not implicate his right to a jury trial as such, but rather his right to state his waiver in writing.

Even if the right to a jury trial had been at issue, the record here demonstrates, in stark contrast to Ryan, that the defendant understood the implications of waiving his right to a jury trial and avowedly desired to do so. In Ryan, the trial court substituted an alternate juror, after a regular juror became ill during deliberations, solely upon the oral consent of defendants’ counsel. The defendants were not consulted about the substitution and were not present at the time the substitution was made. Thus, Ryan involved the relinquishment of a constitutional right without any indication that the defendants knew, understood or weighed the desirability or consequences of such a waiver. In contrast, the record here reflects that the trial court engaged in extensive discussions with the defendant personally, with defense counsel present, about replacing the ailing juror. The only infirmity which occurred here is that the defendant did not waive the written consent requirement of CPL 270.35 and New York Constitution article I, § 2 in writing. Contrary to defendant’s contentions, this Court’s holding in Ryan does not compel a per se reversal of his conviction. As the Appellate Division found, that would favor form over substance in a case such as this (210 AD2d 41).

CPL 270.35 provides that a defendant must consent to the replacement of a sworn juror during deliberation. Under the statute, such consent must be in writing signed by the defendant in open court in the presence of the court. The consent provisions of CPL 270.35 are similar to those required for a waiver of a jury trial contained in the New York Constitution, article I, § 2 and CPL 320.10 (2). Although the court conducted a lengthy colloquy on the record with defendant before substituting an alternate juror for the ill juror, defendant’s written consent to the juror substitution was never obtained.

Despite the requirement in the Criminal Procedure Law of written consent by a defendant to the substitution of an already sworn juror after deliberation has commenced, on this record, there was an implicit waiver by defendant of his constitutional right requiring that he sign a statement consenting to the seating of the alternate juror. Defendant insisted that the court seat the alternate juror rather than declare a mistrial. Additionally, the court spoke at length with defendant directly, on the record, to determine whether defendant’s consent was knowingly, voluntarily and intelligently made.

This view and analysis do no damage to the fabric of the law or its proper application. Moreover, we have previously held that constitutional rights may explicitly be waived (see, People v White, 32 NY2d 393, 399 [waiver of right to speedy trial]; People v Epps, 37 NY2d 343, 350 [waiver of right to be present during trial]; People v Allen, 39 NY2d 916, 917 [waiver of right to counsel]; People v Rodriguez, 50 NY2d 553, 557 [waiver of right to speedy trial]; People v Harris, 61 NY2d 9, 17 [waiver of right to constitutional protections]; People v Connor, 63 NY2d 11, 17 [same]; People v Seaberg, 74 NY2d 1, 11 [waiver of right to appeal]; People v Webb, 78 NY2d 335, 339 [waiver of the right to request sequestration of a jury]). We have also stated that there can be an implicit waiver of constitutionally protected rights (see, People v Davis, 55 NY2d 731, 733 [implicit waiver of Miranda rights]; People v Sirno, 76 NY2d 967, 969 [implicit waiver of Miranda rights]).

Since the record clearly demonstrates that the defendant knowingly waived his right to written consent, reversal of his conviction is neither compelled nor warranted.

Judges Simons, Titone, Levine and Ciparick concur with Chief Judge Kaye; Judge Smith dissents and votes to affirm in a separate opinion in which Judge Bellacosa concurs.

Order reversed, etc.

      . Former Code of Criminal Procedure § 358-a provided, in part, that "the court may direct the calling of one or two additional jurors, in its discretion, to be known as 'alternate jurors.’ * * * [SJuch alternate jurors * * * shall be discharged upon the final submission of the case to the jury. If, before the final submission of the case, a juror die, or become ill, or for any other reason he be unable to perform his duty, the court may order him to be discharged and draw the name of an alternate, who shall then take the seat of the discharged juror in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors” (repealed by L 1952, ch 670).

      . As amended, Code of Criminal Procedure § 358-a now provided, "After final submission of a case, the court may discharge the alternate jurors, or if the court deem it advisable he may direct that one or more of the alternate jurors be kept in the custody of the sheriff or one or more court officers, separate and apart from the regular jurors until the jury have agreed upon a verdict. If after the final submission of the case and before the jury have agreed upon a verdict, a juror die or become ill, or for any other reason he be unable to perform his duty, the court may order him to be discharged and draw the name of an alternate, who shall then take the place of the discharged juror in the jury room and the jury shall then renew its deliberations with the alternate juror” (repealed by L 1970, ch 996, § 1).

      * Because the court stenographer misspelled Mr. Aidala’s name in the transcript of the proceedings, "Aidala” has been substituted for "Aidela” throughout.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    [665 NE2d 1050, 643 NYS2d 10]
    The People of the State of New York, Respondent, v Julio Roman, Appellant. The People of the State of New York, Appellant, v Jesus Feliciano, Respondent. The People of the State of New York, Respondent, v Doug Starks, Appellant.
    Argued January 4, 1996;
    decided April 2, 1996

      POINTS OF COUNSEL

      Renee A. McDonald, New York City, E. Joshua Rosenkranz and Mark Gimpel for appellant in the first above-entitled action.
    Defendant’s right to be present at all material stages of his trial was violated when the trial court, without defendant being present, questioned two potential jurors about their ability to fairly apply the law. (People v Mehmedi, 69 NY2d 759; Snyder v Massachusetts, 291 US 97; People ex rel. Lupo v Fay, 13 NY2d 253; People v Morales, 80 NY2d 450; People v Mitchell, 80 NY2d 519; People v Antommarchi, 80 NY2d 247; People v Sloan, 79 NY2d 386; People v Williams [Mike], 85 NY2d 945; People v Rodriguez, 85 NY2d 586; People v Cain, 76 NY2d 119.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Tami J. Aisenson and Norman Barclay of counsel), for respondent in the first above-entitled action. Defendant’s right to participate in voir dire discussions with potential jurors was not violated.

      (People v Antommarchi, 80 NY2d 247; People v Mitchell, 80 NY2d 519; People v Sprowal, 84 NY2d 113; People v Velasco, 77 NY2d 469; People v Mullen, 44 NY2d 1; Snyder v Massachusetts, 291 US 97; People v Rodriguez, 85 NY2d 586; People v Dokes, 79 NY2d 656; People v Morales, 80 NY2d 450; People v Rodriguez, 76 NY2d 918.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw and Steven J. Chananie of counsel), for appellant in the second above-entitled action. Defendant’s right to be present at trial was not violated by his absence from sidebar discussions with prospective jurors, none of whom served on the jury.

      (People v Sloan, 79 NY2d 386; Snyder v Massachusetts, 291 US 97; People v Mullen, 44 NY2d 1; People v Sprowal, 84 NY2d 113; People v Morales, 80 NY2d 450; People v Favor, 82 NY2d 254; People v Ferguson, 67 NY2d 383; People v Velasco, 77 NY2d 469; People v Dokes, 79 NY2d 656; People v Odiat, 82 NY2d 872.)

      Joseph A. Zayas, New York City, and Daniel L. Greenberg for respondent in the second above-entitled action.
    Defendant-respondent’s presence at the bias-related, sidebar questioning of prospective jurors would not have been "superfluous” because it cannot be said that the outcome of the voir dire proceeding from which he was excluded was "wholly favorable” to him and thus there clearly was the potential for additional meaningful input by defendant had he been present. (People v Antommarchi, 80 NY2d 247; People v Dokes, 79 NY2d 656; People v Favor, 82 NY2d 254; People v Odiat, 82 NY2d 872; People v Ciaccio, 47 NY2d 431; People v Mehmedi, 69 NY2d 759; People v Cain, 76 NY2d 119; People v Williams [Mike], 85 NY2d 945; People v Rodriguez, 85 NY2d 586; People v Morales, 80 NY2d 450.)

      Laura Rossi-Ortiz, New York City, E. Joshua Rosenkranz and Richard M. Greenberg for appellant in the third above-entitled action.
    I. It was per se reversible error to exclude defendant from a sidebar conference concerning a prospective juror’s ability to be fair and impartial, even though the juror was later challenged by the defense, because defendant did not have the opportunity to participate meaningfully in the decision to challenge that juror. (People v Antommarchi, 80 NY2d 247; People v Sprowal, 84 NY2d 113; People v Williams [Mike], 85 NY2d 945; Rosales-Lopez v United States, 451 US 182; Lewis v United States, 146 US 370; People v Sloan, 79 NY2d 386; People v Mitchell, 80 NY2d 519; People v Velasco, 77 NY2d 469; People v Favor, 82 NY2d 254; People v Turaine, 78 NY2d 871.) II. By permitting jurors to submit questions to the People’s witnesses, the court relieved the People of their burden of proof, undermined the integrity of the adversary system, and deprived defendant of his right to be tried by a neutral jury that has not engaged in premature deliberations. (People v Patterson, 39 NY2d 288; People v Ahmed, 66 NY2d 307; Cancemi v People, 18 NY 128; Williams v Florida, 399 US 78; Offutt v United States, 348 US 11; United States v Bush, 47 F3d 511; Duncan v Louisiana, 391 US 145; Apodaca v Oregon, 406 US 404; United States v Sutton, 970 F2d 1001; United States v Johnson, 914 F2d 136.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Morrie I. Kleinbart and Norman Barclay of counsel), for respondent in the third above-entitled action.
    I. Defendant’s unobjected-to absence from the sidebar conference with a prospective juror does not require reversal. (People v Robinson, 36 NY2d 224; People v Patterson, 39 NY2d 288, 432 US 197; People v Antommarchi, 80 NY2d 247; People v Dokes, 79 NY2d 656; People v Mehmedi, 69 NY2d 759; People v Bonaparte, 78 NY2d 26; People v Ahmed, 66 NY2d 307; People

      v Sprowal, 84 NY2d 113; People v Robles, 86 NY2d 763; Kentucky v Stincer, 482 US 730.) II. Defendant’s claim that the trial court should not have submitted jurors’ questions to two witnesses is unpreserved for this Court’s review; in any event, the trial court acted well within its discretion. (People v Narayan, 54 NY2d 106; People v Stewart, 81 NY2d 877; People v Gerard, 208 AD2d 421; People v Tucker, 153 AD2d 164, 77 NY2d 861; United States v Bush, 47 F3d 511; United States v Ajmal, 67 F3d 12; People v Wilds, 141 AD2d 395; People v Knapper, 230 App Div 487; People v Bacic, 202 AD2d 234; Sitrin Bros. v Deluxe Lines, 35 Misc 2d 1041.)
   OPINION OF THE COURT

Levine, J.

These appeals present heretofore unresolved issues in the application of this Court’s doctrine concerning a criminal defendant’s statutory (CPL 260.20) right to be present at sidebar conferences with prospective jurors concerning their possible inability to fairly and objectively weigh the evidence in the case. In all three cases, the venire members whose sidebar conferences were not attended by the defendants ultimately were not seated on the juries, having been excused for cause, by consent, or by peremptory challenge. Thus, these cases call upon us to determine whether, if at all, or under what circumstances, the fact that a prospective juror did not actually deliberate on defendant’s guilt or innocence obviates any violation of the defendant’s statutory right to be present at the sidebar with that juror.

People v Roman

Jury selection in defendant Roman’s murder trial straddled the handing down of our decision in People v Antommarchi (80 NY2d 247) on October 27, 1992. The record indicates that the impact of Antommarchi on voir dire procedure was discussed by the trial court and counsel prior to the continuance of jury selection on October 28. On that date, during the court’s preliminary instructions to the panel, an unidentified venire member asked to "come up”, and an unrecorded conversation took place.

Jury selection continued into a third round on October 29. At the conclusion of the court’s preliminary instructions to the panel, a prospective juror Wilson announced in open court that she had been a crime victim recently and was especially angered because the crime was committed in the presence of her child. A sidebar discussion ensued at which defendant’s counsel but not defendant was present. Wilson was not seated as a juror.

At the conclusion of the trial, defendant Roman was convicted of murder. Prior to sentencing, he made a motion to vacate the conviction on the ground that the Antommarchi ruling had been violated. At sentencing, the trial court denied the motion. The court made findings that (1) during jury selection on October 28, no sidebar conference with a juror occurred; and (2) after the sidebar conference with prospective juror Wilson on October 29, she indicated that, having recently been a crime victim in the presence of her child, "she could not be fair”, and she was discharged for cause upon consent of defendant and the People. Defendant’s conviction was affirmed by a divided panel of the Appellate Division, First Department (217 AD2d 473). The majority held that any violation of Antommarchi did not require reversal because no prospective juror interviewed outside defendant’s presence was seated on his jury and, therefore, defendant was not prejudiced by exclusion from the sidebar. Defendant appeals, and we affirm.

People v Feliciano

The record of the voir dire in defendant Feliciano’s robbery trial indicates that some 10 members of the venire were party to sidebar conferences concerning possible bias, at which the defendant was not present. None of those prospective jurors was seated on defendant’s trial jury. One was excused on a peremptory challenge by the People, three were excused for cause upon consent and six merely excused "on consent”. Applying People v Antommarchi (supra), the Appellate Division, Second Department, reversed Feliciano’s robbery convictions (209 AD2d 634). The Court rejected the People’s contention that reversal was not required because none of the prospective jurors interviewed outside the defendant’s presence sat on the jury, concluding that harmless error analysis was not appropriate under the circumstances. The People appeal, and we affirm.

People v Starks

Defendant Starks was tried for criminal sale of a controlled substance in the third degree. During jury voir dire, a prospective juror Samuels announced in open court that she had some problems in sitting on defendant’s case because she thought she had seen him before. She was asked to approach the Bench and conferred with the trial court and counsel outside the defendant’s presence. At the conclusion of that day of jury selection, as the court was about to excuse the panel, the court asked Samuels to remain "to put on the record the very brief conversation we had at the bench.” The court then recited in the defendant’s presence that Ms. Samuels thought she recognized him from her neighborhood or in connection with her church activities and said she could be fair and impartial if shown that there was no prior acquaintanceship with defendant. Ms. Samuels confirmed that this was an accurate description of her earlier sidebar conversation with the court and counsel. The court gave the prosecution and defense a further opportunity to ask questions, which both sides declined. The following day, defendant’s attorney exercised a peremptory challenge to excuse Samuels "after conferring with my client [because] there is no way that I can live with [juror Samuels].”

During the trial, the court permitted the jury to submit questions to be propounded to witnesses by the court, some of which were asked and answered. The defense did not interpose any objection to that procedure. Starks was found guilty of criminal sale of cocaine by the jury.

On appeal from defendant Starks’s conviction, the Appellate Division, First Department, rejected his Antommarchi argument regarding the sidebar conference with Ms. Samuels, holding that no prejudice occurred since Samuels was not seated on the jury. The Court also supported its holding by citing to the trial court’s subsequent replication of the sidebar conference which the court conducted in the defendant’s presence. Defendant appeals, and we affirm.

Analysis

Under our case law, the jury selection process is an ancillary proceeding — not a "core” proceeding critical to the outcome of a criminal trial (People v Sprowal, 84 NY2d 113, 117). Therefore, a defendant’s right to be present at a sidebar conference with a prospective juror exploring possible general or specific bias is governed exclusively by New York statutory law — CPL 260.20, which gives the defendant a right to be " 'personally present’ during the trial of an indictment” (id.; see, People v Mitchell, 80 NY2d 519, 526-527).

The right to be present under CPL 260.20 extends to every ancillary proceeding that is a "material stage” of the trial (People v Favor, 82 NY2d 254, 265; People v Dokes, 79 NY2d 656, 662), that is, proceedings in which a defendant’s presence "could have a substantial effect on [his or her] ability to defend against the charges” (People v Sloan, 79 NY2d 386, 392; see, People v Favor, 82 NY2d, at 264, supra [statutory right to be present extends to "any proceeding in which the defendant’s presence is substantially and meaningfully related to the ability to defend”]).

A defendant’s presence is substantially and materially related to the ability to defend when the defendant "can potentially contribute to the proceeding” under scrutiny (People v Sprowal, 84 NY2d, at 118, supra); or when a defendant’s "presence would have been useful in ensuring a more reliable determination” of the particular proceeding at issue (People v Morales, 80 NY2d 450, 454). A defendant’s presence at sidebar interviews of prospective jurors for bias or hostility during jury selection is generally required because of the potential input the defendant can give defense counsel in making discretionary choices during jury selection, based on impressions gained from seeing and hearing the juror’s responses on voir dire (see, People v Sloan, 79 NY2d, at 392, supra).

Invocation of the statutory right to be present will be rejected, however, when the claim that a defendant’s presence would have had an impact on the outcome of the trial is "speculative” (People v Morales, 80 NY2d, at 455, supra), or the violation of the statute is "de minimis” (id., at 457, n 2). As most directly pertains to the instant appeals, we have also rejected claims under CPL 260.20 when, either because of the nature of the particular proceeding or its ultimate outcome, the defendant’s presence was " 'useless, or the benefit but a shadow’ ” (People v Morales, supra, at 454, quoting Snyder v Massachusetts, 291 US 97, 106-107 [Cardozo, J.]). That is, a reversal is not required when, because of the matter then at issue before the court or the practical result of the determination of that matter, the defendant’s presence could not have afforded him or her any meaningful opportunity to affect the outcome.

Thus, in People v Smith, the companion case to People v Favor (supra), reversal was not required because, at the only portion of the Sandoval proceeding from which the defendant Smith was excluded, the outcome was wholly favorable to him. Defendant Smith’s presence was, therefore, "superfluous” (82 NY2d, at 268), that is, "it cannot reasonably be said that there was any potential for additional meaningful input by defendant” (id.).

Likewise, because only defense counsel (and not the defendant personally) may argue or choose a stratagem when the proceeding involves a question of law or procedure, hearings on those matters do not involve any potential for meaningful input by a defendant, and presence is not required (People v Rodriguez, 85 NY2d 586 [hearing on scope of cross-examination]; People v Williams, 85 NY2d 945 [hearing on withdrawal of motion to contest finding of competency to stand trial]; People v Velasco, 77 NY2d 469 [precharge conference including hearing on motion to dismiss, argument on legal basis for challenges for cause]; People v Mullen, 44 NY2d 1 [hearing on a sworn juror’s disqualification for personal bias]).

By the same token, a defendant’s absence from a hearing will not deprive him or her of the opportunity to give meaningful input when the court essentially holds a de nova hearing on the same matter at which defendant is present (see, People v Favor, 82 NY2d, at 268, supra; People v Velasco, 77 NY2d, at 473, supra).

The foregoing principles derived from our prior cases on a defendant’s statutory right to be present at material ancillary proceedings afford a basis for decision in the instant cases.

People v Roman

Initially, as to the claimed exclusion of defendant Roman from a sidebar conference with an unidentified juror on October 28, 1992, the trial court made an unchallenged finding at defendant’s sentencing that no such event occurred on that date, and the record does not afford a basis for us to overturn that finding. Concededly, however, a sidebar conference at which defendant was not present took place on October 29 with prospective juror Wilson. In affirming defendant Roman’s conviction, the Appellate Division relied upon the fact that Wilson was hot selected to serve on the defendant’s jury, adhering to the rationale of earlier cases from that court holding that a defendant could not have been prejudiced by exclusion from a conference concerning the qualification of a venire member who did not serve on the trial jury (217 AD2d 473, 474-475, citing People v Shabani, 203 AD2d 142, lv denied 84 NY2d 832; People v Perez, 196 AD2d 781, lv denied 82 NY2d 900).

Contrary to the conclusion of the Appellate Division, a CPL 260.20 violation is not overcome merely because the venire person who was interviewed outside the defendant’s presence was not seated on the jury. That alone "do[es] not negate the possibility that defendant might have made a meaningful contribution to the [proceeding]” (People v Favor, 82 NY2d, at 267, supra), by way of advice to counsel on the selection or rejection of that juror. In defendant Roman’s case, however, the sidebar hearing from which defendant was excluded on October 29 concerned juror Wilson’s disqualification for cause, arising out of her bias against the defense which she had expressed in open court in defendant’s presence. Disqualification of Wilson was a decision for the trial court to make after hearing argument, if any, by counsel, at which defendant could not have made any meaningful contribution (see, People v Ganett, 68 AD2d 81, 86-87, affd 51 NY2d 991; see also, People v Mullen, 44 NY2d, at 5-6, supra). When a prospective juror is disqualified by the court for cause, any benefit defendant could possibly claim from his presence at that excuse for cause hearing would have been "but a shadow” (Snyder v Massachusetts, supra), and purely speculative (People v Morales, supra). Therefore, defendant’s absence from that hearing does not require reversal.

People v Feliciano

For the same reasons discussed regarding defendant Roman’s absence from the disqualification for cause hearings, defendant Feliciano’s absence from sidebar conferences with the three venire members excused for cause would not have required reversal. Likewise, defendant’s claim in reliance upon his exclusion from the sidebar with the juror peremptorily challenged by the People must be rejected. His presence "cannot reasonably be said [to have afforded him] any potential for * * * meaningful input” on the prosecution’s decision to excuse that juror (People v Favor, 82 NY2d, at 268, supra). Under both circumstances of challenges for cause and peremptory challenges by the People, the defendant’s meaningful participation to affect the outcome of the hearing was negated.

However, according to the voir dire minutes, six other members of the panel were excused after sidebar conferences at which the defendant was not present. Thus, the record does not negate the possibility that defendant Feliciano could have provided valuable input on his counsel’s apparently discretionary choice to excuse those venire persons. The Appellate Division, therefore, properly held that defendant’s exclusion from the sidebar conferences with those jurors required reversal on the state of this record.

People v Starks

As the Appellate Division held, the trial court essentially replicated de nova in defendant Starks’ presence the sidebar conference concerning juror Samuel’s misgivings on serving because of a possible prior acquaintance with the defendant, and invited further questioning by the prosecution and defense. Samuels was subsequently excused by defense counsel after conferring with the defendant because the defense "could not live with” that juror. Thus, the record supports the conclusion by the courts below that defendant Starks was given a full and fair opportunity to give meaningful input regarding the discretionary decision to challenge Samuels peremptorily including the option to conduct extensive additional voir dire where her responses to questions could be observed and heard (see, id., at 267; People v Velasco, supra). Under these circumstances, any violation of CPL 260.20 was de minimis, and the possibility that the defendant’s presence at the initial sidebar with Samuels would have altered the defense’s strongly negative impression of her is so remote and speculative as not to require reversal (see, People v Morales, 80 NY2d, at 455, 457, n 2, supra).

We also agree with the Appellate Division that defendant’s failure to preserve by timely objection any error in the trial court’s submission of jurors’ questions precludes appellate review as a question of law and, hence, does not afford a basis for reversal by this Court.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

In each case: Order affirmed.


author: Simons, J.

text:
    [665 NE2d 1056, 643 NYS2d 16]
    The People of the State of New York, Respondent, v Troy English, Appellant.
    Argued March 21, 1996;
    decided April 25, 1996

      POINTS OF COUNSEL

      Malvina Nathanson, New York City, for appellant.
    I. Where defendant’s lawyer has joined the prosecution while the cases against his former client are pending, reversal is required. (People v Shinkle, 51 NY2d 417; People v Novoa, 70 NY2d 490; People v Rosario, 9 NY2d 286; People v Jackson, 78 NY2d 638; People v Baghai-Kermani, 84 NY2d 525; People v Zimmer, 51 NY2d 390; Lobotsky v Lobotsky, 103 AD2d 799; Deal v Mennan Oil Co., 153 AD2d 665; Schmidt v Magnetic Head Corp., 97 AD2d 151.) II. The prosecutor deprived appellant of a fair trial when he improperly examined him concerning his ability to read based on documents that were not in evidence. (People v Schwartzman, 24 NY2d 241.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers and Roseann B. MacKechnie of counsel), for respondent.
    I. Defendant is not entitled to a new trial solely because his former attorney joined the District Attorney’s office which prosecuted defendant while defendant’s case was pending. (People v Shinkle, 51 NY2d 417; People v Jackson, 78 NY2d 638; Chapman v California, 386 US 18; Fahy v Connecticut, 375 US 85; People v Crimmins, 38 NY2d 407; People v Novoa, 70 NY2d 490; People v Rosario, 9 NY2d 286, 368 US 866; People v Baghai-Kermani, 84 NY2d 525; People v Perez, 65 NY2d 154; People v Jones, 70 NY2d 547.) H. Defendant’s claim that the prosecutor improperly used documents which were not in evidence to examine him was not preserved for review by this Court because defendant did not object to the prosecutor’s examination upon this ground during his trial. (People v Maschi, 49 NY2d 784; People v Martin, 50 NY2d 1029; People v Michael, 48 NY2d 1.)
   OPINION OF THE COURT

Simons, J.

This is a conflict of interest case in which defendant’s former counsel became employed by the District Attorney while the prosecution of defendant was pending. The principal issue presented is whether that circumstance requires a reversal of his conviction. We conclude that it does not.

Defendant was charged in one indictment with three unrelated counts of robbery occurring in January and February of 1991. In a separate indictment, he was charged with crimes arising from a burglary and murder in January 1991, and in yet a third indictment with another robbery in February of that year. A special prosecutor has been appointed to handle the second and third indictments and only the first indictment is before us. Procedurally, we are reviewing the direct appeal from the judgment convicting defendant of three counts of robbery and the appeal from an order denying posttrial relief pursuant to CPL 440.10. The two matters were consolidated by the Appellate Division.

The conflict arose because in the fall of 1991, Michael Vecchione, who was assigned to represent defendant on all three indictments, received an offer of employment with the Kings County District Attorney’s office. He requested the administrator of the Assigned Counsel Plan to reassign his files and advised him of the reason for doing so. The court relieved Vecchione and in January 1992 he commenced his duties with the District Attorney.

At the time he was relieved, Vecchione had interviewed defendant, made four court appearances on his behalf resulting in adjournments for further proceedings, and filed omnibus motions for discovery and for a bill of particulars. Vecchione alleged in an affidavit that because the murder charge was the most serious charge, most of his conversations with defendant and the services performed on his behalf related to that charge.

Defendant instituted the CPL article 440 proceeding in March 1994, while the direct appeal was pending, seeking to vacate the judgment of conviction based upon Vecchione’s conflict of interest. In an affirmation in the moving papers, the attorney assigned to succeed Vecchione alleged that he did not become aware of Vecchione’s switch to the District Attorney’s office until May of 1993, nearly a year after defendant’s conviction on the robbery charges and eight months after defendant was sentenced. There is no indication that defendant knew before the trial that he had been assigned a new attorney because Vecchione had become employed by the District Attorney.

In opposition, Vecchione alleged that he has been assigned to two bureaus in the District Attorney’s office since representing defendant, the Homicide Bureau and the Trial Cadre, and that neither handled defendant’s robbery indictment. He denied discussing the case or disclosing any of his conversations with defendant to any member of the District Attorney’s office.

Supreme Court concluded that if the arguments regarding former counsel’s conflict were argued on direct appeal, People v Shinkle (51 NY2d 417) would require reversal per se, but that defendant had failed to make the required showing of actual prejudice required in postconviction remedies (CPL 440.10 [1] [f], [h]). Upon review of the orders consolidated for appeal, a divided Appellate Division affirmed because defendant had failed to demonstrate actual prejudice. The dissenting Justice contended that our holding in Shinkle required reversal per se once a conflict was shown on direct appeal and that the Shinkle rule applied in these circumstances in which the direct appeal and the appeal in the CPL article 440 proceeding had been consolidated.

In People v Shinkle (supra), the executive director of the Legal Aid Society of Sullivan County represented defendant during .the preliminary stage of criminal proceedings, becoming "intimately” familiar with defendant’s file, interviewing him "extensively” and taking part in the formulation of his defense strategy. He subsequently was appointed Chief Assistant District Attorney of Sullivan County and took over the managerial responsibilities of the office during defendant’s prosecution. Because of this conflict, we reversed defendant’s conviction, stating that the defendant and the public at large are entitled to protection from the appearance of impropriety and even the slight risk of prejudice which may flow from an abuse of confidence (id., at 421). The inherent impropriety of the situation in Shinkle was demonstrated, we said, by the fact that the insulation of counsel from defendant’s case could not be fully effective and by defendant’s perception that his former counsel was "personally championing” the People’s case against him (People v Shinkle, supra, at 421; cf., People v Jackson, 60 NY2d 848).

Though the dissent in Shinkle contended that the majority had established a per se rule which disqualified the entire staff of the District Attorney’s office notwithstanding defendant’s failure to show actual prejudice, our subsequent decisions have not applied its holding that strictly. In Matter of Schumer v Holtzman (60 NY2d 46, 55), a case involving removal, we held that generally a public prosecutor should not be removed unless necessary to protect a defendant from "actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” (id.; see also, People v Herr, 86 NY2d 638; People v Jackson, supra). The rule rests upon concerns that clients must depend on the good faith of their former lawyers turned adversaries and where the risk of abuse is obvious, disqualification or reversal is necessary to protect and honor confidences shared during their earlier relationship (see, People v Herr, supra, at 641). To warrant vacatur of the conviction, however, defendant must establish actual prejudice or a substantial risk of an abused confidence even when, as here, the issue arises on direct appeal (see, People v Herr, supra).

Defendant has not claimed that he was prejudiced by Vecchione’s conflict and, under the circumstances, the risk that Vecchione abused defendant’s confidences was insubstantial. Vecchione represented defendant for less than five months, and his contacts with him were preliminary and focused primarily on the more serious murder charge, not the robbery counts of the first indictment. Following his employment by the Kings County District Attorney, a "huge” metropolitan office, Vecchione was assigned to two bureaus which had nothing to do with the robbery prosecutions. He had no contact with the assistants prosecuting defendant and he never discussed the case with his fellow assistants or disclosed to them the contents of any conversation with defendant. Moreover, both the head of the bureau prosecuting the robbery indictment and the assistant who actually tried defendant on the robbery charges swore they had never discussed the case with Vecchione. Under the circumstances, there appears to have been little risk that he abused defendant’s confidences.

We have considered defendant’s remaining point and find it without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.


text:
    [665 NE2d 1059, 643 NYS2d 19]
    In the Matter of Mary Richardson, Appellant, v Commissioner of New York City Department of Social Services et al., Respondents.
    Argued March 27, 1996;
    decided April 25, 1996

      POINTS OF COUNSEL

      April A. Newbauer and Collin D. Bull, New York City, for appellant.
    I. Respondents’ denial of an emergency grant to prevent the eviction of appellant’s family was arbitrary, capricious and contrary to law. (Matter of Kelly v Bane, 192 AD2d 236; Anderson v Regan, 53 NY2d 356; People v Craig, 78 NY2d 616; Price v Price, 69 NY2d 8; Matter of Evans v Newman, 71 AD2d 240, 49 NY2d 904; Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675, 55 NY2d 758; Townsend v Swank, 404 US 282; Carleson v Remillard, 406 US 598; King v Smith, 392 US 309; Matter of Bryant v Lavine, 49 AD2d 673.) II. Respondents’ policy and practice of conditioning eligibility for an Emergency Home Relief grant on an unpublished rule of future financial ability violates the State Administrative Procedure Act. (People v Cull, 10 NY2d 123; Matter of Krauskopf v Perales, 139 AD2d 147, 74 NY2d 730; Two Assocs. v Brown, 127 AD2d 173; Matter of MFY Legal Servs. v Dudley, 67 NY2d 706; Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832.) III. The State respondent’s decision denying petitioner an emergency rent arrears grant is not supported by substantial evidence. (Matter of Dreher v Smith, 65 AD2d 572.)

      Dennis C. Vacco, Attorney-General, New York City (Robert F. Bacigalupi, Victoria A. Graffeo and Ronald P. Younkins of counsel), for Commissioner of New York State Department of Social Services, respondent.
    I. The State Commissioner’s assessment of petitioner’s ability to repay the grant is consistent with Social Services Law § 131-w and 18 NYCRR 370.3 (b). (Childs v Bane, 194 AD2d 221, 83 NY2d 760; Matter of Howard v Wyman, 28 NY2d 434; Matter of Bates v Toia, 45 NY2d 460; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807; City of New York v Blum, 121 Misc 2d 982; Hope v Perales, 83 NY2d 563.) II. The Court below correctly held that the State Commissioner’s decision was based on substantial evidence. (Matter of Baumes v Lavine, 38 NY2d 296; Matter of Ayanfodun v Sobol, 207 AD2d 304.) III. The State Commissioner’s assessment of petitioner’s ability to meet the repayment agreement does not violate the State Administrative Procedure Act. (Matter of Krauskopf v Perales, 139 AD2d 147, 74 NY2d 730; Matter of Cordero v Corbisiero, 80 NY2d 771; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Bates v Toia, 45 NY2d 460.)

      Paul A. Crotty, Corporation Counsel of New York City (John Hogrogian and Pamela Seider Dolgow of counsel), for Commissioner of New York City Department of Social Services, respondent.
    I. The Court below correctly confirmed the holding of the State Department of Social Services that the City Department of Social Services had correctly denied petitioner’s application for an Emergency Home Relief grant to pay her rent arrearages. Ability to repay such a grant is an eligibility requirement for such assistance. Furthermore, the determination of the State Department of Social Services was based on substantial evidence. (Rent Stabilization Assn. v Higgins, 83 NY2d 156; Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Childs v Bane, 194 AD2d 221, 83 NY2d 760; Matter of Kelly v Bane, 192 AD2d 236; Matter of Fineway Supermarkets v State Liq. Auth, 48 NY2d 464; Lovelace v Gross, 80 NY2d 419; Matter of Bernstein v Toia, 43 NY2d 437; Hope v Perales, 83 NY2d 563; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Collins v Codd, 38 NY2d 269.) II. The Court below correctly confirmed the holding of the State Department of Social Services that the City Department of Social Services had correctly denied petitioner’s application for an emergency assistance to families grant to pay her rent arrearages. The determination of the State Department of Social Services was based on substantial evidence. (Matter of Baumes v Lavine, 38 NY2d 304; Matter of Ayanfodun v Sobol, 207 AD2d 304.)

      John C. Gray, Jr., Brooklyn, and Marc Cohan for Brooklyn Legal Services Corporation B, amicus curiae.

    I. Respondents’ interpretation of 18 NYCRR 370.3 (b) (5) is not supported by the language of the regulation or the statute. (Matter of Kelly v Bane, 192 AD2d 236; Matter of Robinson v Perales, 166 AD2d 594; Matter of Bryant v Lavine, 49 AD2d 673; Matter of Bevins v Perales, 141 AD2d 955; Matter of Speed v Blum, 97 Misc 2d 163; Stone v Agricultural Ins. Co., 76 Misc 2d 1021; Fuller v Nassau County Dept. of Social Servs., 77 Misc 2d 677; Tucker v Toia, 43 NY2d 1; McCain v Koch, 117 AD2d 198.) II. The State respondent violated the State Administrative Procedure Act by adding an eligibility rule not contained in the statute or the regulation. (Matter of Robinson v Perales, 166 AD2d 594; Two Assocs. v Brown, 127 AD2d 173; Matter of Sunrise Manor Nursing Home v Axelrod, 135 AD2d 293.)
   OPINION OF THE COURT

Levine, J.

In March 1993 petitioner applied to respondent New York City Department of Social Services for emergency assistance for the payment of rent arrears under the Emergency Assistance to Families with Children (EAF) (see, Social Services Law § 350-j) and Emergency Home Relief (EHR) (see, Social Services Law § 131-w) programs. She and her minor child occupied a two-bedroom apartment in New York City at a monthly rental of $380. For a period ending June 1992, she had been receiving public assistance which included a shelter allowance of $250 a month paid directly to her landlord. The landlord obtained judgments for rent arrears in November 1992 and April 1993 aggregating over $5,000. Although petitioner had obtained employment by the time the judgments were entered, she was able only partly to satisfy, and eviction was imminent.

Respondent New York City Department of Social Services nonetheless denied her application for assistance and she applied for and was granted an emergency fair hearing by the State Department of Social Services. Upon completion of the fair hearing, respondent State Commissioner of Social Services upheld the denial of EAF and EHR benefits. The basis for approving the denial of EHR assistance was petitioner’s admitted financial inability to repay the grant of the assistance she needed to pay all rent arrears owing on the judgments within 12 months. Petitioner then brought this CPLR article 78 proceeding in which, in her amended petition, she challenged only the determination regarding the denial of EHR assistance. Upon transfer from Supreme Court, the Appellate Division denied the amended petition and dismissed the proceeding (215 AD2d 211). We granted petitioner leave to appeal and now reverse, annul the determination and remit the matter for a redetermination.

Respondents seek to justify the denial of EHR assistance to petitioner, based upon her inability to repay the grant within 12 months, as a reasonable interpretation of the governing statute and implementing regulation. Social Services Law § 131-w authorizes the payment of rent and other shelter arrears to persons not eligible for other forms of assistance:

"who are without income or resources immediately available to meet the emergency need, whose gross household income does not exceed one hundred twenty-five percent of the federal income official poverty line and who sign a repayment agreement agreeing to repay the assistance in a period not to exceed 12 months” (emphasis supplied).

The section directs the State Department of Social Services to promulgate implementing regulations to "establish standards for the contents of repayment agreements and * * * to ensure that assistance is provided only in emergency circumstances”.

The regulations adopted by the State Department of Social Services (18 NYCRR 370.3 [b]) condition entitlement to shelter arrears assistance on the applicant’s demonstrating an ability to pay prospective shelter expenses, and not owing any past due amounts under any previous repayment agreement (18 NYCRR 370.3 [b] [5]). Regarding the content of repayment agreements, the regulation requires that such agreements "set forth a schedule of payments that will assure repayment within the 12-month period” (id. [emphasis supplied]).

Concededly, neither the EHR statute nor its implementing regulation expressly authorizes a welfare agency to condition eligibility for assistance on the applicant’s demonstration of an ability to repay the grant within 12 months. Furthermore, in the instant case, the State Commissioner’s argument is unavailing that imposing that eligibility standard here was a reasonable interpretation of the State agency’s own regulation, entitled to judicial deference. For, in the notice and comment period while adoption of the regulation was pending, State Department of Social Services expressly interpreted 18 NYCRR 370.3 (b) (5) to impose "no requirement * * * that a social services district consider an applicant’s ability to repay a grant to be used for rent arrears before making the grant”. In the State Commissioner’s fair hearing ruling on petitioner’s application, no explanation was advanced for this departure from the initial interpretation of the regulation, nor was any such explanation offered in respondent Commissioner’s answer or other papers in opposition to the petition.

Absent a reasoned explanation for abandonment of the State Social Services Department’s expressed original reading of the regulation at the time of promulgation and adoption here of a diametrically opposite interpretation, the agency’s change of position was arbitrary and capricious and cannot stand.

"From the policy considerations embodied in administrative law, it follows that when an agency determines to alter its prior stated course it must set forth its reasons for doing so. Unless such an explanation is furnished, a reviewing court will be unable to determine whether the agency has changed its prior interpretation of the law for valid reasons, or has simply overlooked or ignored its prior decision * * *. Absent such an explanation, failure to conform to agency precedent will, therefore, require reversal on the law as arbitrary” (Matter of Field Delivery Serv. v Roberts, 66 NY2d 516, 520).

The United States Supreme Court similarly held in Gardebring v Jenkins (485 US 415, 430) that an administrative agency’s interpretation of its own regulation is not to be followed if an "alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation” (emphasis supplied).

For all the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, with directions to remand to the State Department of Social Services for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

Order reversed, with costs, and matter remitted to Supreme Court, New York County, with directions to remand to the State Department of Social Services for further proceedings in accordance with the opinion herein.