Is Substitution of An Alternate Jury After the Jury Has Begun Its Delibeartion Prohibited ?
In People v. Ryan, 19 N.Y.2d 100, 278 N.Y.S.2d 199, 224 N.E.2d 710 (l966), defendant challenged the constitutionality of that provision, arguing that the substitution of an alternate juror some five hours after the jury began deliberating violated his right to trial by jury.
The Court of Appeals agreed, saying:
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 of more jurors who have not taken part in the previous deliberation and who had '[ceased] to function as' jurors. 19 N.Y.2d at 104-105.
Ryan further rejected the People's contention that defense counsel's oral consent to the substitution in defendant's absence waived his right to trial by jury.
The Court reasoned that the consent did not satisfy the constitutional requirements for waiving a trial by jury. 19 N.Y.2d at 105.
In People v. Page, 88 N.Y.2d 1, 643 N.Y.S.2d 1, 665 N.E.2d 1041 (1996), the Court of Appeals revisited the issue addressed in Ryan.
Defendant in Page personally consented to the substitution of an alternate for a deliberating juror.
The Court of Appeals reversed his conviction, however, on the grounds that defendant did not waive his right to a jury trial in conformity with the requirements of the New York State Constitution.
The Court observed that while Ryan rejected the People's argument that defense counsel orally could consent to substitution of an alternate juror, Ryan also acknowledged that "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" provided the waiver was done in accordance with the Constitution. 88 N.Y.2d at 8.