H. Salomon, for appellant.
C. Washer, for respondent.
DiFIORE, Chief Judge:
issue presented on this appeal is whether the trial court
erred, after its inquiry pursuant to People v Buford
(69 N.Y.2d 290');">69 N.Y.2d 290 ), in failing to discharge a sworn juror
who, on the fourth day of deliberations, repeatedly stated
that she could not "separate [her] emotions from the
case" and "[did not] have it in [her]" to
decide the case on the facts and the law. We hold, under the
unique circumstances presented here - where the juror
repeatedly and unambiguously responded that she was unable to
render an impartial verdict based solely on the evidence and
the law - that the trial court erred in failing to discharge
the juror as "grossly unqualified to serve"
pursuant to CPL 270.35 (1). Accordingly, defendant is
entitled to a new trial and the order of the Appellate
Division should be reversed.
was indicted for intentionally murdering the victim by
stabbing her 38 times. On the fourth day of deliberations,
juror number one called the court clerk and "asked what
she needed to do... to get excused." The trial judge
conducted an extensive inquiry of the juror in the presence
of the attorneys and defendant during which the juror
repeatedly stated that she was unable to discharge her duty.
The following exchange took place:
COURT: Could you tell us what's going on?
JUROR: I'm not sure that I'm able to separate my
emotions from the case so I just wanted to -
COURT: Well, I mean, you have to do that. You have to
separate your emotions. You're a member of a jury of 12
people. As I said, this has to be decided. And you promised
that you will be able to do so. It has to be decided on the
evidence and the law as you find it to be. And I know
it's difficult to be a juror but that's, you know - I
mean we've all put a lot of time, a lot of effort, and
there's no way that we can go forward without you.
JUROR: Well I do understand. I feel - I thought I would be
able to but it is my duty to let you know that I haven't
been able to.
COURT: Well, I mean, it's something. We can't go
forward and there's no way we can excuse you. We
can't go forward without you, we just can't.
JUROR: So is it just that I make a decision based on my
emotions just to get it out of the way?
COURT: No, no I wouldn't ask you to make a decision based
on your emotions. I would ask you to do - look we're all
the product of who we are and we bring our life experience to
whatever we do. But what you need to do is put aside, to the
extent that you can, your emotion and make a decision. Speak
to your fellow jurors; discuss with your fellow jurors;
listen to your fellow jurors; express your own views to your
fellow jurors; and then, eventually, come to a decision as to
the one issue here. As to whether or not the People have
proven Mr. Spencer's guilt beyond a reasonable doubt.
I'm going to have to ask you to really try very hard to
JUROR: I honestly have been. And I don't feel that we
COURT: We have to continue with the trial. And, I mean, I can
speak to you in the context of all your fellow jurors. What
all of you need to do in terms of sharing. But there's no
new jury that's going to be any better [at] doing this
than you are."
the court's efforts to impress upon the juror the gravity
of her sworn duty to decide the case on the facts and the
law, the juror did not change her mind. Again, she stated,
"THE JUROR: I don't feel like I'm able to. I
mean I've been trying extremely hard and I don't feel
that I can without - I can't separate it[, ] I thought
that I could."
court continued to exhort the juror to fulfill her solemn
duty; the juror, however, remained resolute that she was
unable to do so:
COURT: Well, I mean, whatever emotion - I mean you can decide
the case here based on what you heard and saw in this
courtroom, that's what you need to do. I mean that's
what you need to do is to decide the facts as you see them
and apply the law as I've said it to you, to those facts,
and do that. And that's your only concern. If you do that
you've done your job.
JUROR: But that's what I have been trying to do and
that's why I've come to this conclusion that I