When to Designate the Deliberating Jurors and the Alternates?

Piacente v Bernstein,

127 A.D.3d 1365, 6 N.Y.S.3d 793 [3rd Dept., 2015]

At the beginning of the trial, where there are six jurors in the box, plus alternates, should the alternates be separately designated from the beginning? Or, should the designation of alternates be made just before the jury retires to deliberate? The perceived problem with advance designation of alternates is that the alternates might assume that they will not be needed, and so be tempted to pay less than full attention to the trial. Delaying the designation maintains the suspense, and is thought to make all of the jurors more likely to concentrate.

This case presented a conflict between the CPLR and local rules for the designation of alternates, and it is noted here only to point out the problem. Supreme Court, Albany County, held that the local rule could not be imposed over a party’s objection, and wound up directing a new trial. The Appellate Division contented itself with noting that Supreme Court acted within its discretion, but did not resolve the conflict in procedures.

CPLR 4105 and 4106 require that the first six prospective jurors to survive challenges for cause and peremptory challenges will try the cause. The alternates are to be chosen separately. It is thus clear from the outset which will deliberate and which are alternates. In the Third Judicial District (Albany, Columbia, Greene, Rensselaer, Schoharie, Sullivan, Ulster counties), there is a local rule which provides for the selection of six jurors plus the agreed-upon number of alternates, all of whom are selected and seated without separate designation. The clerk randomly chooses the jurors to deliberate before the jury retires.

This case was tried according to the local rule. Plaintiff requested that the court follow the CPLR, and designate the first six jurors chosen as deliberating jurors and the remaining two as alternates. Following instead the local rule, the court did not designate the deliberating jurors from the eight in the box, but allowed the clerk to select them at random. In the event, the deliberating jurors were not the first six chosen by the parties. The jury rendered a defendant’s verdict, and the plaintiff moved to set the verdict aside and for a new trial before a jury chosen in accordance with CPLR 4105 and 4106. Supreme Court held that the local rule contravened the CPLR, and that following it over the plaintiff’s objection violated his substantial rights. Supreme Court vacated the verdict in the exercise of discretion and ordered a new trial.

As noted, the Appellate Division did not address the resolution of the conflict between the CPLR and the local rule, holding only that Supreme Court had not abused its discretion.

There was a threshold issue as to whether the plaintiff had waived the objection by not voicing it until near the end of the proof. Supreme Court and the Appellate Division both held that there had been no waiver. Trial counsel faced with this conflict would be well advised to raise the issue much earlier in the trial, perhaps as early as the swearing of the jury, in order to avoid any waiver issue.

This case involved only a local rule, and not the Uniform Rules for the Trial Courts. Uniform Rule 202.33 sets forth alternative procedures for the voir dire. Both “White’s Method” (202.33 [g][B]) and the “Struck Method” (202.33 [g][C]) explicitly follow the CPLR by directing the selection of alternative jurors separately from the main panel. Note, however, that even here the possibility of using undesignated jurors is left open, in 202.33 (g)(B)(2) and 202.33 (C)(1) and (4).

Where the parties intend to agree to the use of undesignated alternates, a stipulation to that effect should be made clear on the record at the outset, to avoid a later challenge to the variation from the otherwise mandatory CPLR procedures.

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