Defendant appeals from a judgment of the Supreme Court, New York County (Bruce Allen, J.), rendered October 25, 2007, convicting him, after a jury trial, of attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree, and imposing sentence.
The opinion of the court was delivered by: Saxe, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Richard T. Andrias, J.P., David B. Saxe, Rolando T. Acosta, Dianne T. Renwick, JJ.
In this appeal, defendant argues that his conviction of attempted murder in the second degree and related charges must be reversed because in the course of jury selection, the trial court, without objection, employed a preselection screening procedure in which it allowed any panel members who concluded that they would have scheduling problems to opt out of being considered for service on this case. Defendant argues that this procedure represented an abdication by the court of its judicial function, thereby violating his constitutional as well as statutory rights, necessitating reversal despite his failure to object.
The complainant, livery cab driver Mamadou Bah, was standing by the door of his cab, arguing with the two passengers he had just dropped off because they did not have the $15 fare, when four young men walked toward the cab. One, described by witnesses as in his early 20s, about six-feet one-inch tall, wearing his hair in "braids" or "twists," grabbed Bah from behind, pressed a gun to the side of his head, threatened to kill him, demanded money, and then forced Bah into the cab. Another of the men, wearing a blue cast, entered the front of the cab on the passenger's side and removed $212 from Bah's right pocket. Bah cursed the man holding him, who responded by pointing his gun at Bah and pulling the trigger. Although the gun "clicked," it did not fire. The man walked a few steps away and adjusted the weapon, then returned to Bah, pointed the gun at him, and shot him in the face. The four men then walked away.
The bullet shot passed in one of Bah's cheeks and out the other. Bah, bleeding profusely, managed to drive to a nearby precinct, from where he was taken to a hospital.
Defendant was identified by eyewitnesses as the shooter. Another witness testified that one night defendant had come into her apartment where he'd been staying, "kind of shaken up and tired" and out of breath, and told a story about how he shot and robbed a cab driver, in which he specified that he had shot the cabbie in the face, and that the gun had jammed once before he fired it successfully. The witness also testified that after wanted posters appeared in the area, defendant shaved off his hair.
Defendant was acquitted of robbery in the first degree, but was convicted of attempted murder in the second degree, assault in the first degree and one count of criminal use of a firearm in the first degree.
The trial court employed a somewhat unorthodox preselection screening process in the belief that jury service on a two-week attempted murder trial during the latter part of August would be likely to present scheduling problems for an unusually large number of potential jurors due to school schedules, vacation plans or work requirements. Rather than employing the usual preliminary process in which the court typically engages, by which individual panel members come up to the bench one at a time and the court listens to a long series of explanations of why serving as a juror on that case at that time would pose a hardship for each one, the court attempted to streamline the process. After informing the panel of the nature of the matter and the time it was expected to take, and answering panel members' questions, the court announced that any panel member who had such a scheduling problem would simply be excused from serving on this case, and should report back to the central jury room.
Defendant contends that by excusing all potential jurors who believed their schedules or other personal issues would not allow them to serve on a case of this length or of this seriousness, instead of rendering individual determinations as to juror hardship, the court abdicated its judicial function, thereby violating his constitutional and statutory rights to a jury selected in accordance with the law.
However, the issue was not preserved for appellate review. Not only did defendant fail to object to the jury selection screening procedure employed by the trial court, but the record creates the impression that the procedure was discussed and agreed upon beforehand, even though there was no affirmative agreement on the record regarding the procedure. In particular, the court told a jury panel, without correction or objection, that "the parties recognize" that it wouldn't make sense to keep panel members through the voir dire process if scheduling problems would make service on the case too difficult.
The rule of preservation is not a mere formality; the requirement of a timely objection to a procedure at the trial level ensures that "errors of law which might otherwise necessitate retrial can be avoided or promptly cured" (see People v Martin, 50 NY2d 1029, 1031 ). By failing to object to the pre-screening selection procedure, defendant left the trial court without the opportunity to consider the arguments raised here. The argument must therefore be precluded as unpreserved; moreover, exercise of our interest of justice jurisdiction is not warranted (see People v Solares, 309 AD2d 502 , lv denied ...