This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be affirmed. At trial, after some but not all jurors had been sworn, and while voir dire was ongoing, one of the sworn jurors advised a court officer that there was important information he neglected to tell the court. When questioned, the juror revealed that he worked the night shift and would be coming to court directly from work, raising concerns about his ability to stay awake during the trial (the juror explained that he had slept in the jury room the day before). Defense counsel argued that the juror was able to serve and could be ordered not to work nights until the trial ended. The court declined to issue such a directive and excused the juror based on a finding that he would be unable to remain sufficiently alert during court proceedings. We cannot say that the trial court -- which was in the best position to assess the juror's level of attentiveness -- abused its discretion in discharging the juror after determining that he would be incapable of properly performing his duties.
On appeal, citing differences between the language in CPL 270.15 and CPL 270.35, defendant asserts that the court lacked the authority to discharge the juror under the purportedly more narrow language in CPL 270.15. But defendant never referred to CPL 270.15 or relied on any restrictive statutory language in the trial court. Instead, defendant essentially argued against an incapacity discharge, contending that the juror was "able" to serve. Thus, defendant's current claim is not preserved for our review. The dissent engages in an analysis of the differences between CPL 270.15 and CPL 270.35 -- but neither party raised an argument in the trial court warranting such a discussion. Nor do we find, as the dissent suggests, that a court has "inherent authority" to discharge a sworn juror based on competing work commitments. CPL 270.15 permits discharge of a sworn juror based on incapacity and the discharge here emanated from the trial court's concern that the juror would be incapable of remaining awake and attentive during the trial -- an essential prerequisite of proper jury service.
Defendant's contention relating to the trial court's failure to charge an affirmative defense is similarly not preserved for review and his remaining pro se claims do not require reversal. Finally, we reject defendant's challenge to the constitutionality of his adjudication as a persistent violent felony offender and persistent felony offender (see People v Bell, __ NY3d __ [decided today]; People v Quinones, 12 NY3d 116, cert denied 130 S Ct 104 ).
LIPPMAN, Chief Judge (dissenting):
After answering with evident comprehension and even alacrity*fn1 numerous questions put to him by the court and the parties, the juror at issue was found acceptable and sworn. Although the voir dire of the juror ranged over numerous subjects, including the nature of his employment, no inquiry was made of him, and he did not volunteer information, as to the hours during which he worked or whether jury service would for him entail financial hardship. It subsequently came to the court's attention, through a court officer, that the juror was employed at night. The Court then inquired of the juror and learned that he worked as a per diem temp employee at a bank from midnight to 8:00 AM five nights a week and that, although he then felt "fine," on a given day he might have difficulty concentrating at trial after working at night. The parties' ensuing re-examination of the juror disclosed that he would lose income if he did not work and that he preferred not to remain on the case because, as he put it, "at this time I still have to pay my bills." The court did not ask the juror whether he intended to work during the trial. Instead, it asked him to confirm that it would be an economic hardship if he did not work, and the juror obliged.
Out of the juror's presence, defense counsel opposed his discharge:
"I think [the juror] should remain on the jury. It is his civic obligation. If he [sic] started to extend this sort of rationale to the entire panel we would probably lose half of them. So many people now are independent contractors and they don't necessarily work for employers who extend those sort of benefits, paid jury service.
"This trial we know is going. It may very well be done by Friday, so now it is Tuesday, so what is the worse that is going to happen to [this juror]? He's going to be out three days without pay, if he stays out, and furthermore, he said for the last two days he said I'm not out of it, that is what he said.
He was able to follow the voir dire and the questions that I was asking and Miss Buchter [the prosecutor] was asking, so I think he is perfectly suitable and able" (emphasis added).
The prosecutor responded that although she "did initially like this juror," she wished that he had disclosed his financial situation before he had been selected and now thought that economic pressure might interfere with his fairness and impartiality.
The Court remarked that he too wished the juror had spoken up sooner. He, nonetheless, expressed the view that the juror's need to work would be difficult to reconcile with the attentional demands of jury service and on that ground discharged the juror, contemporaneously noting defendant's exception for the record.
Defendant argues that the court was without authority to discharge a sworn and able juror. The argument is premised upon CPL 270.15 (3), which provides in relevant part, "[i]f before twelve jurors are sworn, a juror already sworn becomes unable to serve by reason of illness or other incapacity, the court must discharge him or her and the selection of the trial jury must be completed in the manner prescribed in this section." Contrary to the majority's characterization, defendant's argument does not rely on CPL 270.35.*fn2 Defendant's argument, fully preserved by his objection to the discharge of a "perfectly suitable and able" juror, is rather that the standard set forth in CPL 270.15, i.e., inability to serve, must control because, in the context of a statutory ...