source: Caselaw Access Project

author: CIPARICK, J. Read, J. (dissenting).

license: Public Domain

text:
    [881 NE2d 193, 851 NYS2d 97]
    The People of the State of New York, Appellant, v James Zimmerman, Respondent.
    Argued October 9, 2007;
    decided December 13, 2007

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, New York City (Roseann B. MacKechnie and Barbara D. Underwood of counsel), for appellant.
    The evidence before the grand jury established venue in New York County because, at the time defendant made his perjurious statements in Ohio, he knew those statements were likely to have a materially harmful impact on governmental processes in New York County. (People v McLaughlin, 80 NY2d 466; Matter of Murtagh v Leibowitz, 303 NY 311; People v Greenberg, 89 NY2d 553; People v Fea, 47 NY2d 70; People v Licenziata, 199 App Div 106; Matter of Taub v Altman, 3 NY3d 30; Matter of Steingut v Gold, 42 NY2d 311; People v Moore, 46 NY2d 1; People v Jensen, 86 NY2d 248; People v Jennings, 69 NY2d 103.)

      Steven R. Kartagener, New York City, and Thomas Fitzpatrick for respondent.
    The courts below correctly ruled that the New York County grand jury lacked the power to indict respondent for perjury allegedly committed in Cincinnati, Ohio, under the so-called “particular effect” theory of geographical jurisdiction (venue), since the proof before the grand jury could not and did not establish that respondent’s alleged conduct “had, or was likely to have, a particular effect upon such county,” or that respondent committed perjury with “the intent that it would, or with knowledge that it was likely to, have such particular effect” on New York County. (Matter of Taub v Altman, 3 NY3d 30; People v Fea, 47 NY2d 70; Matter of Steingut v Gold, 42 NY2d 311; People v Sandy, 236 AD2d 104, 91 NY2d 977; People v Rodriguez y Paz, 58 NY2d 327; People v Greenberg, 89 NY2d 553; People v Moore, 46 NY2d 1; Matter of Murtagh v Leibowitz, 303 NY 311; People v Hetenyi, 277 App Div 310, 301 NY 757; People v Culhane, 33 NY2d 90.)
   OPINION OF THE COURT

CIPARICK, J.

This appeal asks us to determine whether defendant is subject to “particular effect” jurisdiction, or venue, as set forth in CPL article 20, in New York County. We conclude that he is not.

In 2002, the New York Attorney General’s office began an antitrust investigation into suspected unlawful conduct by Federated Department Stores and May Department Stores. The Attorney General sought to determine whether Federated and May conspired with Waterford Wedgwood USA and Lenox, Inc.—manufacturers of fine crystal and china—to restrain the sale of such products by Bed, Bath and Beyond, a competitor of Federated and May. During the investigation, the Attorney General subpoenaed documents from the companies and testimony from their current and former employees.

Prior to Federated’s compliance with the subpoena duces tecum, the Attorney General and Federated entered into a confidentiality agreement, which provided that any dispute regarding the disclosure or classification of documents would be brought in New York County Supreme Court. The agreement was sent to and signed by Federated’s attorney in Washington, D.C.

Defendant, James Zimmerman, who was the chairman and chief executive officer of Federated from 1998 until his retirement in February 2004, was among the witnesses examined under oath as a part of the investigation. The Attorney General sought to examine defendant at the Antitrust Bureau’s New York County office, but as an accommodation to him, the Attorney General agreed to conduct the examination at Federated’s corporate headquarters in Cincinnati, Ohio.

The examination was held on April 9, 2004. At that time, an oath was administered by the court reporter, who was also an Ohio notary public. Defendant was represented at the examination by his Washington, D.C. attorney, who signed the confidentiality agreement. During the examination, the Attorney General extensively questioned defendant regarding an alleged conversation he had with Waterford’s chairman of the board on June 11, 2001.

A couple of months later, the Attorney General’s office notified Federated, May, Waterford and Lenox that it was prepared to commence a lawsuit against them, alleging violations of the Donnelly Act and Executive Law § 63 (12). But before the action was commenced, the Attorney General resumed settlement negotiations that resulted in the four companies each entering into settlement agreements with the Attorney General.

Meanwhile, following defendant’s examination, the Attorney General commenced a grand jury investigation in New York County into defendant’s alleged perjury during his examination. As part of the charge to the grand jury, the Attorney General read the statutory provisions that govern “particular effect” jurisdiction and venue as set forth in CPL 20.20 (2) (b) (state jurisdiction), 20.10 (4) (definition of “particular effect”) and 20.40 (2) (c) (county jurisdiction). In January 2005, the grand jury indicted defendant for perjury in the first degree (Penal Law § 210.15), charging him with six instances of testifying falsely. The indictment also alleged “that the crime of Perjury in the First Degree was designed to prevent a particular effect in the County and State of New York and . . . that the defendant’s conduct . . . was performed with intent that it would, and knowledge that it would be likely to, have such an effect herein.”

Defendant, in an omnibus motion, moved to dismiss the indictment, arguing that “particular effect” venue, pursuant to CPL 20.40 (2) (c), did not lie in New York County. Defendant conceded that New York State had jurisdiction pursuant to CPL 20.20 (2) (b). Citing Matter of Taub v Altman (3 NY3d 30 [2004]), however, defendant argued that his alleged perjury had no perceptible impact on the governmental processes of that county and that there was no evidence that he actually intended or was aware that his alleged perjury would have a deleterious effect on the governmental or judicial processes of New York County. The People opposed the motion and argued that the evidence presented to the grand jury established that defendant acted with either the intent or knowledge that his actions would affect the antitrust investigation being conducted in New York County.

Supreme Court granted defendant’s motion, dismissed the indictment and held that defendant’s acts had no “particular effect” upon New York County. The Appellate Division affirmed and noted that “[c]riminal conduct constituting an offense has a ‘particular effect’ upon a county when it ‘produces consequences which . . . have a materially harmful impact upon the governmental processes or community welfare of [the] particular [county], or result in the defrauding of persons in such [county]’ ” (32 AD3d 345, 346 [2006], quoting CPL 20.10 [4]). The Appellate Division found that

“the evidence did not establish that, at the time defendant made his allegedly false statement, he was aware of the facts relied upon by appellant for this claim. Instead, all that can be reasonably inferred from the facts is that at the time he made his statements in Ohio, defendant knew his conduct would have a deleterious effect on the governmental or judicial processes of the State of New York, but not on any particular county” {id., citing Taub).

A Judge of this Court granted leave to appeal, and we now affirm.

In Taub, we opined that

“in order for prosecutorial jurisdiction to lie in New York County, it is that county . . . that must suffer a particular effect as a result of defendants’ alleged conduct. The statutory requirement that the conduct have a materially harmful impact may thus be satisfied only by a ‘concrete and identifiable injury’ to either the county’s governmental processes (that is, the executive, legislative or judicial branch of government) or the welfare of the county’s community. Moreover, to be materially harmful, the impact must be more than minor or incidental, and the conduct must harm ‘the well being of the community as a whole,’ not merely a particular individual” (Taub, 3 NY3d at 33-34 [citations omitted]).

Further, “because the jurisdiction of the county seeking to prosecute must be established before the grand jury, the type of injury or offense contemplated by the particular effect statute must ‘be perceptible and of the character and type which can be demonstrated by proof before a [gjrand [j]ury’ ” (Taub at 34, quoting Matter of Steingut v Gold, 42 NY2d 311, 317 [1977]).

The question presented here, as in Taub, is whether the evidence before the grand jury established a concrete and identifiable injury suffered specifically by New York County. The People rely upon instances of defendant’s conduct that purportedly affected New York County’s judicial processes. The People also contend that certain statements evince a concrete and identifiable injury suffered by New York County and that at the time defendant made the alleged perjurious statements in Ohio, he knew that they were likely to have a materially harmful impact on judicial processes in New York County. That is, he must have known that the Attorney General’s antitrust investigation might lead to civil litigation or criminal charges, proceedings that would necessarily be brought in New York County.

Defendant, on the other hand, argues that a New York County grand jury was without authority to indict him for perjury under the particular effect theory of geographical jurisdiction. Defendant contends that the proof that was presented to the grand jury failed to establish that his alleged conduct had or was likely to have a materially harmful impact on New York County or that he had the intent or knowledge that it would have such particular effect on the County.

Defendant’s argument should prevail because there was no evidence before the grand jury that could reasonably lead to the conclusion that when defendant allegedly testified falsely in Ohio, he did so with the intent or knowledge that his actions would have a material and harmful effect on New York County’s judicial processes. The subpoena for his testimony had not issued from a New York County grand jury, but rather from the Attorney General’s office itself, pursuant to its subpoena powers.

At common law and under the State Constitution, a defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (see People v Moore, 46 NY2d 1, 6 [1978], citing NY Const, art I, § 2, and People v Goldswer, 39 NY2d 656, 659-661 [1976]). “So stringently was that rule applied, at common law, that where the alleged act was performed in part in one county and in part in another or others, venue was in neither county, and prosecution could not be had at all” (Matter of Murtagh v Leibowitz, 303 NY 311, 316 [1951]). The Legislature sought to correct that situation by enacting venue statutes that permit the prosecution of certain actions in other counties under certain very specific conditions (see id.; see also People v Nicoll, 3 AD2d 64, 70-71 [4th Dept 1956] [reciting early history of multiple county jurisdiction]). Thus, “[a]bsent [a] statutory exception, . . . the territorial unit for criminal prosecutions is [a] county” (People v Fea, 47 NY2d 70, 75 [1979]).

Our previous cases illustrate the limits of county jurisdiction. In Fea, the People sought to prosecute the defendant in Bronx County for allegedly assaulting an individual in Rockland County. The assaults were intended to compel usurious loan payments in Bronx County. The People argued that defendant’s assaults had a materially harmful impact upon the community welfare of Bronx County. We reversed the conviction and dismissed the indictment, holding that “ [extraterritorial jurisdiction is to be applied only in those limited circumstances where the out-of-jurisdiction conduct is violative of a statute intended to protect the integrity of the governmental processes or is harmful to the community as a whole” (Fea, 47 NY2d at 76-77).

In Steingut (42 NY2d 311 [1977]), the petitioners were indicted in Kings County for the corrupt use of position or authority, in violation of Election Law § 448, for promising to assist in obtaining appointment to a position on the Civilian Complaint Review Board of the New York City Police Department in exchange for fund-raising services. The alleged promise occurred while the petitioners were at a luncheon meeting in New York County. The Kings County prosecutor asserted “particular effect” venue based on the fact that the fund-raising was to support an election that was to take place in Kings County. We concluded that where the election was to take place was an amorphous fact that the Legislature clearly did not intend to be dispositive in determining venue (see Steingut, 42 NY2d at 317).

We further noted in Steingut that the application of the statute was best illustrated by an example in a practice commentary “in which the culprit maliciously blows up a dam in Putnam County near the Westchester County line, thus flooding some Westchester territory—a result which he either intends or knows is likely to occur. In such case, jurisdiction of the crime lies in Westchester as well as in Putnam” (Steingut at 317 [citation omitted]). We held that “[i]n the case before us there was no perceptible material harmful impact such as the physical intrusion noted in the commentary or other types of impact” (id. at 318).

The difficulty in applying CPL 20.40 (2) (c) to the situation here is that it defines “jurisdiction of counties,” or venue, in the same terms used by CPL 20.20 (2) (b) to define the jurisdiction of the State. Under section 20.20 (2) (b), the State has jurisdiction if the statute defining the offense is designed to prevent a “particular effect in this state” and defendant’s criminal conduct “was performed with intent that it would have such effect herein.” CPL 20.10 (4) defines “particular effect,” as relevant here, to mean “consequences which . . . have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction.”

Section 20.40 (2) (c) tracks section 20.20 (2) (b), with some variation; it says that a county has jurisdiction if the defendant’s “conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein.” The parallelism between the approach of the state jurisdiction and county jurisdiction statutes appears, in hindsight, to be unworkable. The “jurisdiction” of the State and the “jurisdiction” of a county are fundamentally different from each other.

The State is a sovereign, and its power is limited by its boundaries. It can punish people for conduct committed outside those boundaries only in limited circumstances, as defined by section 20.20. But counties are not sovereigns; they are subdivisions of the State. If the State has jurisdiction of a case it may, as a general rule, assign the trial of that case to any county it chooses. Thus, in enacting CPL 20.40 to regulate the “jurisdiction” of counties, the authors of the Criminal Procedure Law did not need to be concerned with limitations on sovereign power. More specifically, they did not need to require, as a precondition to venue, a “particular effect” upon a single “county or a political subdivision or part thereof’; nor did they need to require that the defendant intend such an effect or know that it is likely to occur. But they did impose those requirements, apparently overlooking at least two possibilities: (1) a defendant’s conduct might affect, or be intended or be likely to affect, the State of New York as a whole, rather than a county or some smaller unit of government; and (2) a defendant might intend an effect within the state without knowing in which county or counties the effect will occur. In these two situations, the statute leaves a gap; the State has jurisdiction, but no county does.

Here, the first of the possibilities overlooked by the Legislature is involved. Defendant’s perjury, if the charge against him is true, was obviously designed to mislead the New York State Attorney General and frustrate his investigation. Thus defendant’s act was performed with the intent that it would have a “particular effect” on the State—“a materially harmful impact upon” the State’s “governmental processes.” But there was no evidence presented to the grand jury indicating that defendant’s conduct was intended to have or, as far as defendant knew, was likely to have any “materially harmful impact” on the “governmental processes or community welfare” of any “county or a political subdivision or part thereof.”

Specifically, the confidentiality agreement, which named New York County as the venue for any dispute arising from the classification and disclosure of confidential information, was sent to, and signed by, Federated’s attorney in Washington, D.C. No grand jury testimony, however, indicates that defendant knew of the venue provision in the confidentiality agreement. Further, an Assistant Attorney General’s grand jury testimony relating to defendant’s examination focuses on defendant’s alleged perjurious statements, not on his state of mind. The testimony does indicate that defendant was aware that the Attorney General was investigating certain meetings that had taken place at Federated Department Stores’ offices in New York City, and that defendant was initially issued a subpoena to appear at the Attorney General’s offices in Manhattan to be examined. But awareness of a New York City-centered investigation is not evidence that defendant acted with knowledge that his conduct would impact New York County’s governmental and judicial processes, nor can such an inference reasonably be drawn.

In conclusion, because evidence presented to the grand jury did not establish that defendant intended or knew that his alleged perjurious statements would have a concrete and identifiable injury to either New York County’s governmental processes or the welfare of the County’s community, “particular effect” jurisdiction, or venue, is not sustainable. Certainly, this result reflects a “Catch-22” situation. And it is lamentable that, although defendant’s acts admittedly could have caused a “concrete and identifiable” injury to New York State generally, there is not a single county in the state where this prosecution could be brought given the current statutory scheme. Again, the gap in the “particular effect” venue statutory scheme that we identified in Taub cannot be filled by this Court. The Legislature, however, may do so.

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

Read, J. (dissenting).

At common law, a criminal defendant could only be tried in the county where a crime was actually committed. Over a century ago, however, the Legislature relaxed this standard statutorily so as to prevent “miscarriage of justice.” Almost 90 years later, a comprehensive new Criminal Procedure Law expanded upon the then existing remedial statute, with the CPL’s drafters noting that “[i]n general, . . . multiple county jurisdiction is bestowed more liberally than state jurisdiction” (Commn Staff Notes, reprinted following CPL 20.40 in NY CLS, Book 7, at 109 [emphasis added]). Yet today a majority of the Court concludes that there is no geographical jurisdiction over this criminal defendant in any New York county even though geographical jurisdiction was concededly proper in New York State. Neither the CPL’s text nor our past decisions mandate such an irrational result. I respectfully dissent.

Statutory Text and Legislative History

The specific question posed by this appeal is whether the evidence presented to the grand jury satisfies jurisdiction in New York County within the meaning of CPL 20.40 (2) (c). In order to answer this question, we must construe CPL 20.40 (2) (c), which grants so-called “particular effect” jurisdiction to New York counties. Because “[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks and citations omitted]), our goal should be to apply CPL 20.40 (2) (c) to this case as the Legislature would have intended it to apply. Since “the clearest indicator of legislative intent is the statutory text” (Majewski, 91 NY2d at 583), our starting point in construing CPL 20.40 must be the provision’s language.

CPL 20.40 states that “[a] person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction pursuant to section 20.20 . . . when” any one of 19 statutory subsections is fulfilled. Subdivision (2) (c) vests geographical jurisdiction in a county “[e]ven though none of the conduct constituting such offense may have occurred within such county” if “[s]uch conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein.” Belatedly, CPL 20.10 (4) defines a “particular effect” as a “materially harmful impact upon the governmental processes or community welfare of’ the county seeking to assert jurisdiction.

Where “the natural signification of the words employed” in a statute leaves “no room for construction . . . courts have no right to add to or take away from that meaning” and the task of judicial interpretation is finished (Majewski, 91 NY2d at 583 [internal quotation marks and citations omitted]). Here, the CPL’s text does not define “materially harmful impact,” “governmental processes,” or “community welfare”; nor does the text explain whether “particular” modifies “county” in addition to “effect.” Because the text of CPL 20.40 (2) (c) is not “too clear for construction” (see McKinney’s Cons Laws of NY, Book 1, Statutes § 76), we need to examine its legislative history—in particular, its general and specific derivation—in order to glean and “effectuate the intent of the Legislature.”

The drafting history of CPL 20.40 (2) establishes certain points critical to this appeal. First, CPL 20.40 (2) is a remedial statute, intended by the Legislature to remedy gaps in county jurisdiction created by the strict common-law rule of vicinage. Under the common law, a crime could only be prosecuted in a county in which all elements were performed; as a result, there was a jurisdictional “gap” for crimes that crossed county lines (for example, death is a result element of murder; if a defendant stabbed a victim in Nassau County, and the victim staggered into Queens County before dying, common-law vicinage would allow for jurisdiction in neither county).

As far back as 1881, however, the Legislature saw fit to remedy this deficiency in county jurisdiction, passing section 134 of the Code of Criminal Procedure (CCrP), a statute providing that “[w]hen a crime is committed, partly in one county and partly in another . . . the jurisdiction is in either county.” New York courts interpreting CCrP § 134 recognized the statute as remedial and therefore refused attempts to adopt “construction[s of the statute] that w[ere] never intended and which, to say the least, would be extremely technical” (People v Licenziata, 199 App Div 106, 110 [2d Dept 1921]).

In the 1960s, New York overhauled its criminal law and its law of criminal procedure, appointing a Temporary Commission on Revision of the Penal Law and Criminal Code. The Commission’s efforts led to the 1970 Criminal Procedure Law (see L 1970, ch 996), a “complete reconstruction from the ground up” in which “[t]he changes in substance w[ere] numerous and frequently of a fundamental nature” (6th Interim Rep of Temp Commn on Rev of Penal Law and Grim Code, 1967 NY Legis Doc No. 6, at 7). That said, many CPL provisions had some counterpart in the predecessor CCrE] and the CPL itself contains a derivation table indicating any CPL sections that were “specifically or generally derived” from coordinate provisions of the CCrP As relevant here, this table shows that section 20.40 (2) traces its general origins to CCrP § 134 (see L 1970, ch 996, at 3387).

While CPL 20.40 (2), like its general predecessor CCrP § 134, was a legislative remedy to strict common-law vicinage, the CPL did more than merely recodify the preexisting law of county jurisdiction, which the Commission described as “meager and shallow” (Staff Comment of Temp St Commn on Rev of Penal Law and Crim Code, 1967 Proposed NY CPL 10.40, at 45). Explaining section 10.40 (the forerunner of CPL 20.40), the Commission Staff wrote,

“The rules governing the jurisdiction of this state over offenses which may also be within the jurisdiction of another state are quite comparable to those governing the jurisdiction of a county over offenses which may also be within the jurisdiction of another county. In general, however, multiple county jurisdiction is bestowed more liberally than state jurisdiction, and there are several kinds of situations in which a county acquires jurisdiction of an offense pursuant to this section where the state, in an analogous inter-state situation, would not acquire jurisdiction under section 10.20” (id. at 45 [emphasis added]).

Thus, in addition to citing CPL 20.40 (2)’s remedial predecessor, the drafters of the CPL explained that while state and county geographical jurisdiction are similar, county geographical jurisdiction under CPL 20.40 is less strict (“bestowed more liberally”) than state geographical jurisdiction under CPL 20.20.

In sum, the Legislature intended the provisions of CPL 20.40 (2) to “prevent a miscarriage of justice” owing to county jurisdictional “limits prescribed by the common law” (Licenziata, 199 App Div at 111); and the Legislature also intended that the provisions of CPL 20.40 sweep more broadly than CPL 20.20 as a general matter. By construing the statute to allow a situation where there is geographical jurisdiction in the State but not in any of its individual counties, the majority ignores both propositions.

Our Precedent and the Facts in This Case

The majority (like the courts below) takes the position that our hands are tied by our precedent; that we must affirm because we decided in Matter of Taub v Altman (3 NY3d 30 [2004]) that there is no venue in this kind of case. The logic undergirding Taub and our earlier decisions in Matter of Steingut v Gold (42 NY2d 311 [1977]) and People v Fea (47 NY2d 70 [1979]) does not, however, mandate an affirmance here, where the facts are very different.

Steingut, Fea and Taub were animated by an apprehension that particular effect jurisdiction—a legislative “exception” to common-law conduct jurisdiction—might swallow up the common-law “rule.” Thus, in Taub we disclaimed the “People[’s] assertion] that. . . the City [in this case, the State] may be deprived of its ability to prosecute within its borders certain crimes, of which it is undeniably the victim” (3 NY3d at 38), because “particular effect jurisdiction is an alternative ground for venue . . . invoked only when jurisdiction does not lie on some other basis—such as the far more common scenario in which evidence exists that conduct establishing an element of the offense has occurred within” another New York county (id. at 38-39 [emphasis added]). We followed up this caveat with an even more explicit expression by stating that the criminal statute involved in Taub provided “jurisdiction will lie in any county where the defendant executed or mailed the [tax] return” (id. at 39). Similarly, in both Fea and Steingut, venue would have been proper in the New York county where the allegedly criminal conduct took place. There would have been no venue “gap” at common law, and the remedial nature of CPL 20.40 (2) (c) did not come into play.

In this case, however, county geographical jurisdiction could not lie in any New York county other than New York County; nor could geographical jurisdiction lie in any county under any theory of venue other than particular effect. Indeed, the majority appears to concede as much by suggesting that the Legislature might want to fill a perceived gap in the statute. Given that CPL 20.40 (2) (c) is remedial and that finding no jurisdiction in any county is contrary to legislative intent and objectionable as a matter of policy, there is no warrant for strictly construing this provision that, on its face, easily supports the grand jury’s finding of particular effect jurisdiction in New York County (see generally McKinney’s Cons Laws of NY, Book 1, Statutes § 141 [“In construing a statute which is ambiguous the construction to be adopted is the one which will not cause objectionable results”]). The majority has effectively rendered CPL 20.40 (2) (c) meaningless: on the one hand, it is “an alternative ground for venue . . . invoked only when jurisdiction does not lie on some other basis” (Taub, 3 NY3d at 38-39 [emphasis added]), but on the other hand (this case), it must be strictly construed and so may not be invoked in a situation where there is no alternative basis for geographical jurisdiction in any county despite the existence of geographical jurisdiction in the State (see majority op at 426-427).

Read together with CPL 20.10 (4), CPL 20.40 (2) (c) vests a county with jurisdiction over criminal

“conduct [that] had, or was likely to have, [consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction, or result in the defrauding of persons in such jurisdiction] . . . , and was performed with intent that it would, or with knowledge that it was likely to, have such [consequences] therein.”

The most direct effect of defendant’s alleged perjury in this case would be to impede the Attorney General’s investigation into anticompetitive practices in the tabletop market. The majority zeroes in on this, proclaiming that this is not an effect on the governmental processes of New York County. This analysis, however, misses the mark, particularly once the varnish of “strict construction” is stripped away from section 20.40 (2) (c) in light of the facts in this case.

The Donnelly Act vests the Attorney General with authority to conduct investigations as a preliminary to bringing judicial or grand jury proceedings (see General Business Law § 343). In this investigation, the Attorney General sent multiple subpoenaed interrogatories from New York County to Federated while defendant was CEO, several of which asked about certain principals’ meetings in New York County. Federated and the Attorney General entered into a confidentiality agreement while defendant was CEO of Federated, which specified that any issues of confidentiality or otherwise would be adjudicated in Supreme Court, New York County. The Attorney General was taking testimony from witnesses in New York County, which was the situs for every interview of a Federated employee or representative save defendant, who was interviewed in Ohio as a negotiated courtesy. Thus, there was sufficient evidence from which the grand jury might fairly and reasonably infer that the particular effect of defendant’s alleged perjury—to thwart or slow down the progress of an antitrust investigation—was likely to materially harm “governmental processes” in New York County, the probable venue for any eventual litigation. Any other result would reward a defendant whose perjury is successful, or would force the Attorney General to bring judicial or grand jury proceedings prematurely, without adequate preliminary inquiry.

Moreover, a secondary, but wholly foreseeable, effect of impeding the Attorney General’s investigation into anticompetitive behavior would be to undermine competition in the tabletop market—in other words, hindering an investigation fosters the underlying anticompetitive conduct sought to be deterred and/or punished. While the Attorney General might have a statewide focus generally, the conduct giving rise to his investigation was, among New York counties, particularly concentrated in New York County—where the tabletop industry’s showrooms were located and its trade shows were held, the “nerve center” of Federated’s New York operations, and the site of its flagship Macy’s and Bloomingdale’s stores. The “community welfare” of a county such as New York County includes not only its residents, but also its businesses. As a result, there was sufficient evidence from which the grand jury might fairly and reasonably infer that the particular effect of defendant’s alleged perjury—to reduce competition in the tabletop industry—was likely to materially harm the “community welfare” of New York County, where the industry was centered.

The final prerequisite for venue is defendant’s intent or knowledge that his perjury would have a particular effect on New York County. Here, defendant corresponded with representatives from the Attorney General’s office in New York County. As the longtime CEO of Federated, he had to have known that New York County was the focal point for the American tabletop industry and that Federated’s “nerve center” in New York State is in Manhattan. Defendant, to whom the corporate law department reported, likely knew that Federated had signed a consent agreement dictating that any disputes would be litigated in Supreme Court in New York County. Finally, defendant likely knew that his former colleagues at Federated had been interviewed in New York County in connection with an antitrust investigation related to events during his tenure as CEO, that defendant was the only Federated representative interviewed outside New York County, and that defendant’s own interview only took place in Ohio after requests to interview him in New York County had been rebuffed by his counsel. In light of these facts, there is sufficient circumstantial evidence for the grand jury to have reasonably inferred that, more likely than not, defendant knew his alleged perjury was likely to have a particular effect on New York County.

Conclusion

The majority appears to believe that we have been painted into a corner by the Legislature’s inadvertence or drafting mistake, and that the only means of escape is new legislation. I disagree. Because neither CPL 20.40 (2) (c)’s text nor our precedents mandate otherwise, I would decide the issue before us as the Legislature intended it to be decided, and would conclude that there was sufficient evidence to support the grand jury’s finding of particular effect jurisdiction in New York County. In light of the Court’s decision to the contrary, however, there is now no doubt that curative legislation is required if the Attorney General wishes to avoid today’s unpleasant outcome when he is forced to depose witnesses out of state in future investigations. As all prosecutors in New York should now realize, CPL 20.40 (2) (c) is a dead letter, except (perhaps) in the event a miscreant blows up a dam in Putnam County (see supra at 434 n).

Chief Judge Kaye and Judges Smith and Jones concur with Judge Ciparick; Judge Read dissents in a separate opinion in which Judges Graffeo and Pigott concur.

Order affirmed.

      . CPL 20.20 (2) (b) provides that
      “a person may be convicted in the criminal courts of this state of an offense . . . when: . . .
      “[e]ven though none of the conduct constituting such offense may have occurred within this state . . .
      “[t]he statute defining the offense is designed to prevent the occurrence of a particular effect in this state and the conduct constituting the offense committed was performed with intent that it would have such effect herein.”

        . CPL 20.10 (4) defines “[p]articular effect of an offense” as “[w]hen conduct constituting an offense produces consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction, or result in the defrauding of persons in such jurisdiction.”

      . CPL 20.40 (2) (c) provides that
      “[a] person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction pursuant to section 20.20 . . . when: . . .
      “[e]ven though none of the conduct constituting such offense may have occurred within such county . . .
      “[sjuch conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein.”

      . The Legislature has created other statutory exceptions to strict territorial principles of geographical jurisdiction, such as Judiciary Law § 177-a, which authorized “special narcotics parts in the supreme court ... to hear and determine narcotic cases from within counties wholly contained” by New York City. That statute effectively “removed the ‘traditional jurisdictional boundaries’ and combined all five counties of New York City into a single unit for purposes of prosecuting narcotics indictments” (People v Rodriguez y Paz, 58 NY2d 327, 333 [1983]).

      . Matter of Murtagh concerned section 134 of the Code of Criminal Procedure, the predecessor statute to CPL 20.40.

       The majority opinion has so eviscerated CPL 20.40 (2) (c) that it is questionable whether particular effect jurisdiction would lie, under the majority’s analysis, in the very example that it cites—where a “culprit maliciously blows up a dam in Putnam County near the Westchester County line, thus flooding some Westchester territory” (majority op at 428 [emphasis added]). A Putnam County dam-breaker, even one who floods “some Westchester territory,” cannot be said to have engaged in “conduct . . . violative of a statute intended to protect the integrity of the governmental processes or . . . harmful to the community as a whole,” yet the majority twice quotes this standard with approval (see majority op at 427, quoting Fea, 47 NY2d at 76-77). It is interesting, too, to note that the dam example cited by the majority originated in Richard G. Denzer’s practice commentary— mere paragraphs away from the statement that “[i]n general . . . multiple county jurisdiction or venue is bestowed more liberally than state jurisdiction” (McKinney’s Cons Laws of NY, Book 11A, CPL 20.40, at 54 [1971 ed]).


author:
Graffeo, J.
      Ciparick, J. (dissenting).

text:
    [880 NE2d 863, 850 NYS2d 377]
    The People of the State of New York, Respondent, v Winston Gajadhar, Appellant.
    Argued November 13, 2007;
    decided December 18, 2007

      POINTS OF COUNSEL

      Paul Wiener, New York City, and Steven Banks for appellant.
    If a criminal defendant is tried before a jury, the constitutional and statutory requirement that the jury consist of 12 persons is nonwaivable and, therefore, appellant’s conviction by an 11-person jury must be reversed, notwithstanding his consent. (People v Page, 88 NY2d 1; Cancemi v People, 18 NY 128; People v Ahmed, 66 NY2d 307; Williams v Florida, 399 US 78; People v Ryan, 19 NY2d 100; People v Mitchell, 266 NY 15; People v Thorn, 156 NY 286; Stokes v People, 53 NY 164; People v Rathbone, 145 NY 434; People v Warren, 145 AD2d 966.)

      Robert M. Morgenthau, District Attorney, New York City (Hilary Hassler and Mark Dwyer of counsel), for respondent.
    Defendant executed a valid, written waiver of his right to a jury of 12 in full compliance with provisions of the state constitution. He should be bound by that waiver. (Cancemi v People, 18 NY 128; People v Page, 88 NY2d 1; People v Ryan, 19 NY2d 100; People v Lester, 149 AD2d 975; Matter of Bell v Sherman, 174 AD2d 738; Matter of Stressler v Hynes, 169 AD2d 750; Williams v Florida, 399 US 78; People v Cosmo, 205 NY 91; Patton v United States, 281 US 276; People v Mitchell, 266 NY 15.)
   OPINION OF THE COURT

Graffeo, J.

After jury deliberations commenced in this case, one of the jurors became ill and was hospitalized. Opposing a mistrial, defendant asked that the deliberations continue with the remaining 11 jurors. The court granted defendant’s request and defendant executed a written waiver of his right to a jury of 12 citizens in open court. We must decide whether article I, section 2 of the state constitution permits a defendant to consent to a deliberating jury of less than 12 individuals. We hold that the waiver in these circumstances was valid.

I

Defendant Winston Gajadhar and his business associate, Tony Norng, operated an automobile repair business in Brooklyn. When the shop closed in 1994, the men believed that they were owed $1,500 from Sammi Fiki for work performed on a taxicab. Norng and defendant decided that defendant would attempt to collect the monies due from Fiki.

When defendant went to Fiki’s office to discuss the matter, Fiki stated that he would only speak to Norng. Defendant later returned to Fiki’s premises with another man (not Norng) and found that Fiki had been joined by his brother, Mosad, and a man named Hisham. After Fiki denied owing the money, defendant told his companion to “take care of them.” The man locked the office door and produced a handgun. A scuffle ensued and, during the melee, Mosad, Hisham and Fiki were shot. After defendant and his accomplice fled, emergency workers responded and transported the victims to a hospital. Fiki and Hisham survived, but Mosad did not.

The police came to suspect that defendant was involved in the crime but believed that he had escaped to his native country of Trinidad. Defendant eventually returned to the United States, securing a job at another automobile repair shop. At some point he made incriminating statements to one of his coworkers who, unbeknownst to defendant, was cooperating with the Federal Bureau of Investigation (FBI) regarding an unrelated matter. The coworker shared defendant’s statement with an FBI agent.

In 1999, a team of NYPD officers and FBI agents went to defendant’s workplace but defendant became aware that the authorities were looking for him and he managed to elude capture again. He returned to Trinidad but was not permitted to enter the country because he produced a fake passport. Defendant was detained by authorities until United States marshals took him into custody and brought him back to New York.

Defendant was tried before a 12-member jury along with several alternate jurors. At the end of the case, defense counsel informed the trial court that, in the event a juror became unavailable after deliberations began, defendant would not consent to the substitution of an alternate juror. Because substitution without a defendant’s consent is prohibited by CPL 270.35 (1), the court dismissed the alternate jurors before deliberations began.

On the third day of deliberations, a juror became ill and had to be hospitalized for approximately one week. The court and the parties were aware that it had been difficult to secure the attendance of all the witnesses, some of whom had to travel from other countries, and that a retrial would be burdensome for all involved. Defense counsel told the court that defendant wanted deliberations to continue with the remaining 11 jurors. The People raised a concern that Cancemi v People (18 NY 128 [1858]) prohibited a criminal defendant from consenting to a jury of less than 12.

Supreme Court granted defendant’s request, noting that, after Cancemi was decided, article I, section 2 of the state constitution was amended to allow a defendant to waive the right to a 12-person jury under proper circumstances, provided that the waiver is made in writing and in open court. Defendant executed the required waiver and deliberations resumed. Defendant was eventually acquitted of intentional murder in the second degree, two counts of assault in the first degree and two counts of attempted second-degree murder, but he was convicted of attempted robbery in the first degree and felony murder in the second degree. Supreme Court sentenced defendant to an aggregate term of 20 years to life in prison.

On appeal, defendant adopted a position contrary to that presented during trial—he claimed that the state constitution does not allow a defendant to consent to a jury of less than 12 members in any situation. The Appellate Division rejected defendant’s contention and upheld the convictions. A Judge of this Court granted leave and we now affirm.

II

The number 12 has long been associated with trial by jury but no one knows why or when the common law settled on that figure (see e.g. People v Cosmo, 205 NY 91, 96 [1912] [“(w)hen or how that number acquired its historic sacredness no one can tell, for the origin of the institution itself has been lost in the darkness of antiquity”]). Some legal commentators speculate that the number has religious significance (see e.g. 1 Edward Coke, Institutes of the Laws of England, at 155a [1st Am ed 1812]). It has also been said that a jury of 12 evolved from certain ancient practices, such as convening 12 individuals with knowledge of a disputed matter to determine the truth or requiring a person to defend an action by swearing an oath of innocence attested to by 11 other individuals (see e.g. Proffatt, A Treatise on Trial by Jury § 12, at 16; id. § 28, at 41-42; Wells, The Origin of the Petty Jury, 27 L Q Rev 347, 359 [1911]; Constitutions of Clarendon § 9 [1164]). Regardless of origin, the number 12 was eventually regarded with “superstitious reverence” (Scott, Fundamentals of Procedure in Actions at Law, at 76 [1922]) and “sometime in the 14th century the size of the jury at common law came to be fixed generally at 12” (Williams v Florida, 399 US 78, 89 [1970]).

The common-law tradition of a 12-person jury was exported to America in the colonial era and gained explicit recognition in the original Charter of Liberties and Privileges enacted by the first Legislature in 1683 (see Charter of Liberties and Privileges § 17 [1683], reprinted in 1 Lincoln, Constitutional History of New York, at 101-102). The right was also recognized in the first constitution after New York became a state (see 1777 NY Const art XLI). Although the constitution of 1777 did not specifically refer to the number 12, it provided that the right to a jury trial as it existed in New York before the adoption of the constitution was to be continued (see id.).

The parameters of the right to a jury trial were later modified by successive state constitutional amendments (see e.g. 1821 NY Const, art VII, § 2; 1846 NY Const, art I, § 2; 1938 NY Const, art I, § 2). The 1821 amendment altered the original language slightly without affecting the meaning of the provision. But, in 1846, an amendment added a new principle to the state constitution—the ability of parties in a civil action to waive the right to a jury trial. This was a significant modification that allowed parties not only to consent to trial by a judge serving as the factfinder, but also permitted litigants to “agree to a jury of six, or to other variations in traditional procedure” (Problems Relating to Bill of Rights and General Welfare, 1938 Rep of NY Constitutional Convention Comm, vol 6, at 12 [hereinafter Poletti Report]; see e.g. Sharrow v Dick Corp., 86 NY2d 54, 59 [1995]). Of course, the fact that the constitution was amended to clearly provide for the waiver of a 12-person jury in civil cases meant that the opposite was also true—the right could not be waived in criminal cases.

Against this backdrop, in 1858 this Court decided Cancemi v People (18 NY 128 [1858]). In that case, 12 jurors had been empaneled for the defendant’s murder trial. During the proceedings, one juror had to be discharged, albeit at the express request of the defendant. As a result, the guilty verdict was rendered by 11 jurors.

This Court concluded that a verdict reached by an 11-member jury violated article I, section 2 of the state constitution, which at that time included no language suggesting that a criminal defendant could waive a jury trial as the 1846 amendment had authorized for civil cases. According to the Court, the common-law jury of 12 was a constitutional “mode of proceeding” in criminal cases that could not be altered by the consent of the parties and, hence, the defendant’s approval of the juror’s discharge “was a nullity” (id. at 137, 138). The Court reasoned that “[i]f a deficiency of one juror might be waived, there appears to be no good reason why a deficiency of eleven might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and the trial committed to the court alone” (id. at 138).

Following Cancemi, questions were raised about the efficacy of a ban on jury trial waivers in criminal cases. This culminated in a 1935 proposal by the Judicial Council seeking legislative adoption of a concurrent resolution in favor of a constitutional amendment to include noncapital criminal cases within the scope of the waiver language that had been added to article I, section 2 in 1846 for civil trials (see 2d Rep of NY Jud Council, at 97, reprinted in 1936 NY Legis Doc No. 48 [C], at 3). The Council recognized that the proposed language was broad enough to “legalize trial by jury of less than twelve men, as well as a complete waiver of the jury” but that the exact scope of the amendment would have to be determined by the judiciary (2d Rep of NY Jud Council, at 100). The Council firmly believed that there was “little doubt at present that such waiver permitted under proper conditions w[ould] be a desirable and valuable part of criminal procedure” (id.).

The Legislature passed the resolution and submitted the proposed constitutional amendment to the voters for approval. The electorate was to decide whether “defendant[s] in all criminal cases, except those in which the crime charged may be punishable by death,” should be able to waive a jury trial (see L 1935, vol 1-2, at 1917). After the resolution achieved second passage in the 1937 session, the amendment was approved by voters and became effective on January 1, 1938 (see Poletti Report at 8).

Later that year, a constitutional convention was conducted and new language was inserted in article I, section 2 to specify the procedure for obtaining a proper waiver (see 2 Rev Rec, 1938 Constitutional Convention, at 1273-1282). After these two amendments, article I, section 2 read, in relevant part, as follows:

“[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. ... A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, 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. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver” (1938 NY Const, art I, § 2).

The language of this constitutional provision has remained unchanged since 1938. In addition, article VI, section 18 also references criminal juries by stating that “crimes prosecuted by indictment shall be tried by a jury composed of twelve persons, unless a jury trial has been waived as provided in section two of article one” (NY Const, art VI, § 18 [a]). Thus, whether the procedure used in this case was constitutionally permissible depends on the scope of the waiver envisioned in article I, section 2.

Ill

Following the 1938 amendments, the first major decision by this Court on the issue of jury trial waivers was People v Ryan (19 NY2d 100 [1966]). In that case, defense counsel consented to the substitution of an alternate juror for a deliberating juror approximately five hours after deliberations had begun. At that time, section 358-a of the Code of Criminal Procedure allowed such a substitution to occur.

This Court concluded that the substitution violated the right to a 12-person jury because the alternate was kept away from the deliberations for five hours and, during that period, the alternate had ceased to function as a juror (see 19 NY2d at 105). As a result, the Court determined that “13 jurors participated in the deliberations” (id. at 103) in contravention of “the Constitution of this State . . . [which] prohibits the substitution of an alternate juror—in effect a 13th juror—after the jury has begun its deliberation” (id. at 104-105). Notably, in response to the People’s contention that the constitution permitted a defendant to waive the right to a 12-person jury altogether, the Court explained that “[t]he consent given by the defendants’ counsel . . . did not satisfy the constitutional requirements for waiver and, therefore, no waiver occurred” since article I, section 2 only contemplated a defendant’s personal waiver in writing (id. at 106). The implication of this ruling is that, had the defendants themselves consented to the substitution of the alternate in writing and in open court, there would not have been a constitutional problem.

In the aftermath of Ryan, the Legislature adopted section 270.35 of the Criminal Procedure Law dealing with the substitution of an alternate juror. That statute, unlike section 358-a of the Code of Criminal Procedure, explicitly incorporates the waiver requirements of article I, section 2 by providing that an alternate juror can be substituted for a juror after deliberations have commenced if the defendant personally consents to the substitution in writing and in open court.

Then, in People v Page (88 NY2d 1 [1996]), this Court was asked whether a defendant could orally consent to the substitution of an alternate juror after deliberations commenced. We answered that oral consent by a defendant was insufficient because strict compliance with the requirements of CPL 270.35 was essential to effectuate a valid waiver under article I, section 2 (see id. at 10). In so holding, we recognized that the analysis in Cancemi had been premised on the pre-amendment text of the state constitution, which had not allowed jury trials to be waived in criminal cases. Cognizant of the history underlying the 1938 amendments that made waiver permissible, we explained 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” (id. at 9). Therefore,

“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’ ” (id. at 8, quoting NY Const, art I, § 2).

IV

There is no doubt that Cancemi was decided correctly in 1858. At that point, article I, section 2 unequivocally permitted jury waivers only in civil cases. Conversely, the constitution did not allow criminal defendants to waive the right to a jury trial, which meant that defendants could not consent to jury deliberations by less than 12 jurors (see generally People v Cosmo, 205 NY at 96).

In our view, however, the history of article I, section 2 and our subsequent decisions construing the meaning of the provision’s evolving text reveal that there is no longer a constitutional impediment to a defendant consenting to the continuation of deliberations by 11 jurors in conformance with the explicit procedures set forth in article I, section 2. The 1938 constitutional amendments clearly dispelled the notion that a defendant cannot consent to an alteration of the common-law jury of 12 in a noncapital criminal case. Since the waiver language in article I, section 2 for civil cases permits juries of less than 12, unlike the dissent, we are not persuaded that the identical language, when applied to criminal cases, prohibits a defendant’s waiver allowing deliberations to continue with 11 jurors.

Linguistic considerations aside, because a noncapital criminal defendant is free to waive a jury entirely in order to have a judge act as the finder of fact (see CPL 320.10 [1])—something that was not permissible when Cancemi was decided—it follows that if a juror becomes unavailable after deliberations have begun and there are no alternates that can be substituted, a defendant should be permitted to request that an 11-member jury decide his fate.3 Similarly, if criminal defendants can waive the common-law right and consent to deliberations in which 13 jurors are involved (see People v Page, 88 NY2d at 8) they should also be able to seek deliberations by 11 jurors if circumstances arise that warrant such a request. If the number 12 truly is sacrosanct, it would have to be required in all conceivable circumstances.

Of course, the constitution authorizes waiver only with the approval of the trial judge. Such a situation may arise when a deliberating juror becomes unavailable due to illness or other unexpected occurrence and the alternate jurors have been discharged at the defendant’s request. In this unusual circumstance, “the waiver is tendered in good faith and is not a strategem to procure an otherwise impermissible procedural advantage” (People v Duchin, 12 NY2d 351, 353 [1963]; see People ex rel. Rohrlich v Follette, 20 NY2d 297, 301 [1967]). Allowing a defendant to decide whether deliberations should continue also provides the accused with more options than would otherwise be available if the right to a jury trial were as rigid and inflexible as defendant maintains. For example, if a defendant believes that a favorable outcome is possible, he may prefer to consent to deliberations continuing with 11 jurors rather than having to endure the ordeal, risk and expense of a second trial. But if the defendant believes that he is more likely to prevail at a retrial, the constitution ensures that this remedy is available to a defendant as well.

Equally significant is the fact that permitting a waiver of the common-law jury under article I, section 2 is consistent with the principle that criminal defendants can waive many fundamental constitutional rights: the right to confront accusers (see e.g. People v Hansen, 95 NY2d 227, 230 [2000]); the right to counsel (see e.g. People v Gillian, 8 NY3d 85, 88 [2006]); the privilege against self-incrimination (see e.g. People v Lee, 58 NY2d 491, 494 [1983]); the right to testify and to present a defense (see e.g. People v Henriquez, 3 NY3d 210, 217 [2004]); the right to be free from unreasonable searches and seizures (see generally People v Esajerre, 35 NY2d 463, 467 [1974]); and the right to be present during trial proceedings (see e.g. People v Velasquez, 1 NY3d 44, 48 [2003]). After a defendant enters a knowing, voluntary and intelligent waiver of any of these rights, that choice cannot be challenged on appeal (see People v Henriquez, 3 NY3d at 216-217). We do not see sufficient justification for applying a different rule to the right to a jury trial. Contrary to the dissent’s analysis, the constitution now entrusts to a defendant the decision whether to allow a jury to continue deliberating with 11 members when a juror becomes unexpectedly unavailable. Therefore, the rights guaranteed by article I, section 2 are personal to the accused.

V

Here, after a deliberating juror was hospitalized and there were no alternate jurors that could be substituted, defendant decided that it was in his interests to be judged by the remaining jurors he had a hand in choosing, rather than accepting a mistrial and subjecting himself to the ordeal of a second trial. Defendant made a good faith request that deliberations continue with the remaining 11 jurors and he executed a written waiver in the manner specified by the constitution that was approved by the trial judge. “Regardless of how unwise” defendant now thinks “that decision may have been, it was his to make” and he must “accept the decision he knowingly, voluntarily and intelligently made” along with “the consequences of his intentional actions and choices” (id. at 216-217). In light of this determination, defendant’s remaining contention is academic.

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

Ciparick, J. (dissenting).

Because the constitutional (see NY Const, art VI, § 18) and statutory (see CPL 270.05 [1]) requirement that a jury in a felony case consist of 12 persons is not waivable, defendant’s conviction by an 11-person juiy of felony murder and attempted robbery must be reversed, notwithstanding defendant’s consent to proceed with 11 jurors after one juror became unavailable due to illness.

Contrary to the majority’s assertion, Cancemi v People (18 NY 128 [1858])—after almost 150 years—remains good law. A defendant exercising the right to a trial by jury must be tried by a panel of 12, and neither a court, a prosecutor nor a defendant can alter the parameters of this fundamental mode of a judicial proceeding; that modification is solely within the province of the Legislature. In Cancemi, we held that the constitutionally and legislatively-determined fundamental mode of a court’s proceeding is essential to ensuring due process of law and protecting a defendant’s liberty, and that the public interest in ensuring that citizens are not punished without due process of law trumps a defendant’s ability to control the trial. We further held that the mode of proceeding is not a right personal to a defendant which he or she can affect: “the trial must be by the tribunal and in the mode which the constitution and laws provide, without any essential change [and t]he public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant” (Cancemi at 138).

The majority suggests that Cancemi, although never overruled, is no longer a bar to a defendant’s consent to a jury consisting of fewer than 12. This is so, because our concern that allowing a waiver of one juror would lead to a waiver of the entire jury—not available for criminal trials in 1858—has been alleviated by subsequent constitutional and statutory amendments that permit the waiver of the right to a jury trial in favor of a bench trial (see NY Const, art I, § 2; CPL 320.10). However, in deciding Cancemi, we stated that:

“It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated” (Cancemi, 18 NY at 138).

The majority opines that

“the history of article I, section 2 and our subsequent decisions construing the meaning of the provision’s evolving text reveal that there is no longer a constitutional impediment to a defendant consenting to the continuation of deliberations by 11 jurors in conformance with the explicit procedures set forth in article I, section 2” (majority op at 446).

I strongly disagree.

Article I, section 2 of the New York State Constitution refers to the complete waiver of a jury trial in favor of a bench trial, as the corresponding statutory provision—CPL 320.10—indicates. It does not refer to the waiver of a single juror. The majority seeks to tie the legislative history of the 1938 amendment to article I, section 2—authorizing a waiver of jury trial in favor of a bench trial—to the proposition that a defendant may waive the right to be tried by a 12-person jury by relying on the Judicial Council’s recommendations for that amendment. The Judicial Council “was created by statute in 1934 as a permanent research body to advise the [Legislature and the courts on improvements in the administration of judicial justice” (Saxe, The Judicial Council of the State of New York; Its Objectives, Methods, and Accomplishments, 35 Am Pol Sci Rev 933, 933-934 [Oct. 1941]). I do not believe that the Judicial Council’s isolated statement that “[i]t remains to be determined by judicial interpretation whether the proposed amendment will legalize trial by jury of less than twelve men, as well as a complete waiver of the jury” (2d Rep of NY Jud Council, at 100) indicates that it had thoughtfully considered allowing a defendant to consent to a jury of fewer than 12 persons, as the majority suggests (see majority op at 443-444). Further, the majority’s statement that: “The [Judicial] Council firmly believed that there was Tittle doubt at present that such waiver permitted under proper conditions w[ould] be a desirable and valuable part of criminal procedure’ ” (majority op at 443-444, quoting 2d Rep of NY Jud Council, at 100) simply refers to the primary subject of the 1938 amendment, a defendant’s ability to consent to a bench trial in lieu of a jury trial, not his or her ability to consent to an 11-person jury. Thus, there is no evidence in the 1938 legislative history of the amendment to article I, section 2 that the Legislature itself even considered legalizing the practice of allowing a defendant to consent to being tried by fewer than 12 jurors.

The majority suggests that because the waiver language in article I, section 2 for civil cases is identical to the waiver language for criminal cases, a defendant should be allowed to waive a trial by fewer than 12 jurors. We addressed this proposition in Cancemi. There, we noted that

“[t]here is, obviously, a wide and important distinction, between civil suits and criminal prosecutions, as to the legal right of a defendant to waive a strict substantial adherence to the established, constitutional, statutory and common law mode and rules of judicial proceedings. This distinction arises from the great difference in the nature of such cases, in respect to the interests involved and the objects to be accomplished” (Cancemi, 18 NY at 135-136).

There has been no constitutional or legislative amendment permitting a trial by fewer than 12 jurors and no “judicial interpretation”—until today—that allows such a drastic departure from the text of article VI, section 18 of the New York Constitution—adopted in 1961. That section formally enshrined in the language of our Constitution the number of jurors required in a criminal case—“that crimes prosecuted by indictment shall be tried by a jury composed of twelve persons, unless a jury trial has been waived as provided in section two of article one of this constitution” (NY Const, art VI, § 18 [a]).

Neither has our decisional law eroded this principle. People v Ryan (19 NY2d 100 [1966]) and People v Page (88 NY2d 1 [1996]), relied heavily upon by the People, do not support the proposition that a defendant may consent to being tried by fewer than 12 persons. Both of those cases involved the interpretation of a statute allowing for the substitution of a juror with an alternate juror.

The primary issue in Ryan was whether defense counsel could consent to the admission of an alternate juror into deliberations some five hours after they had begun. The Court disposed of that issue by holding 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” (Ryan, 19 NY2d at 104-105). The constitutional impediment to a defendant consenting to the substitution of an alternate juror after deliberations had begun that arose in Ryan was removed by the Legislature when it enacted CPL 270.35 in 1970.

In Page, the issue was whether the defendant could consent orally to the substitution of a juror pursuant to CPL 270.35 (1), which provides that “the defendant must consent to such replacement [and s]uch consent must be in writing and must be signed by the defendant in person in open court in the presence of the court.” The majority construes the Court’s statement “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” (Page, 88 NY2d at 8) to mean that a defendant may consent to a jury of fewer than 12 persons. However, the phrase “the inclusory right to a jury of 12” does not refer to the defendant’s ability to consent to a jury of fewer than 12 persons, but refers to the defendant’s ability to consent to the substitution of a juror—in effect creating the 13th juror (see Page at 8, citing Ryan at 104-105). Thus, a defendant forgoes “the inclusory right to a jury of 12” when consenting to the substitution of an alternate juror. In sum, neither Ryan nor Page provide support for the majority’s proposition that a defendant may consent to a jury composed of fewer than 12 persons, and “the inclusory right to a jury of 12” can only refer to the substitution of a juror with an alternate—a 13th or maybe even a 14th or 15th juror, not a decrease in the number of jurors deliberating and ultimately reaching a verdict.

As it is well established that constitutional language must be given its plain meaning, the clear and unambiguous language of article VI, section 18 dictates the requisite number of jurors. There is no language in the Constitution that permits a felony jury trial with fewer than 12 jurors. The People maintain—and the majority agrees—that we have allowed criminal defendants to waive many fundamental constitutional rights, such as the right to confront accusers, the right to counsel, the privilege against self-incrimination, the right to testify and to present a defense, the right to be free from unreasonable searches and seizures, and the right to be present during trial proceedings (see majority op at 448). Nevertheless, these rights cannot be characterized as fundamental “to the organization of the tribunals or the mode of proceeding prescribed by the constitution and the laws” (Cancemi, 18 NY at 137). Because the right to be tried by 12 persons is fundamental to the mode of proceeding and not personal to a defendant, it is distinguishable from the other rights that we have permitted a criminal defendant to waive. The right to be tried by a jury of 12—unless waived in favor of a bench trial—is inviolate and cannot be waived.

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

Judges Read, Smith, Pigott and Jones concur with Judge Graffeo; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Kaye concurs.

Order affirmed.

      . See also Proffatt, A Treatise on Trial by Jury § 76, at 112 n 4 (1877) (“If the twelve apostles on their twelve thrones must try us in our eternal state, good reason hath the law to appoint the number twelve to try us in our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon’s officers were twelve” [internal quotation marks omitted]); id. § 9, at 11 n 2 (stating that 12 was first adopted in 725 A.D. by a king of Wales who explained that just “as Christ and his twelve apostles were finally to judge the world, so human tribunals should be composed of the king and twelve wise men” [internal quotation marks omitted]).

      . Two years earlier, article I, section 2 had been amended to permit five-sixths verdicts in civil cases (see Poletti Report at 8).

      . The relevant language of article I, section 2 for civil cases reads: “a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” Using parallel language for criminal cases, section 2 states, “[a] jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death . . . .”
      The dissent also maintains that we have taken a “drastic departure” from the text of article VI, section 18 (dissenting op at 451). This is not so. That provision requires that all indictments be tried before a 12-member jury unless the defendant waives that right under article I, section 2. Because we believe that article I, section 2 permits a defendant to consent to 11 deliberating jurors under the circumstances presented, our decision is not inconsistent with the language of article VI, section 18.

        . We also note that an 11-member jury does not contravene the federal constitution (see Williams v Florida, 399 US at 86).