11 Person Jury Verdict Upheld in New York

Wednesday, Dec. 19, 2007
p. 1, col. 4
11-Person Jury’s Verdict Upheld Majority Accepts Defendant’s Waiver
ALBANY–The Court of Appeals yesterday abandoned one of its oldest precedents by deciding that a jury with fewer than 12 members can return a valid verdict in a criminal trial in New York state.

The 5-2 ruling upheld Winston Gajadhar’s conviction for murder and attempted robbery by an 11-member Manhattan Supreme Court jury Mr. Gajadhar requested that the 11 jurors decide his case after a 12th juror was hospitalized three days into deliberations, but he subsequently appealed his conviction as unconstitutional.

Yesterday’s ruling is counter to the Court’s findings in the 1858 case, Cancemi v. People, in which the Court recognized the 12-member jury as the standard for criminal trials in New York. Cancemi came only 12 years after the formation of the Court, and the issue had not been revisited until People v. Gajadhar, 166.

Amendments to Article 1; Section 2 of the state Constitution and court rulings interpreting the evolving text of the section have made it clear that defendants in non-capital cases can consent to having juries smaller than 12 members decide their cases, the majority found yesterday.

“The 1938 constitutional amendments clearly dispelled the notion that a defendant cannot consent to an alteration of the common-law jury of 12 in a noncapital criminal case,” Judge Victoria A. Graffeo wrote for the majority in Gajadhar. “Since the waiver language in Article 1, section 2 for civil cases permits juries of less than 12, unlike the dissent, we are not persuaded that the identical language, when applied to criminal cases, prohibits a defendant’s waiver allowing deliberations to continue with 11 jurors.”

The two dissenters, Judge Carmen Beauchamp Ciparick and Chief Judge Judith S. Kaye, are also the longest-tenured members of the Court of Appeals. Judge Ciparick wrote that Cancemi (18 NY 128) “remains good law.”

“A defendant exercising the right to a trial by jury must be tried by a panel of twelve, and neither a court, a prosecutor nor a defendant can alter the parameters of this fundamental mode of a judicial proceeding, that modification is solely within the province of the Legislature,” the dissent stated.

Judge Ciparick called the right to trial by a 12-member jury “inviolate” and wrote that it can only be waived by a defendant in favor of a bench trial.

Cancemi involved a murder conviction reached by an 11-member jury after a 12th juror had been dismissed. That Court ruled that permitting convictions reached by juries with fewer than 12 members would be a “highly dangerous innovation.”

In addition to a rereading of the venerable Cancemi decision, yesterday’s ruling had the Court delving into the legal histories for the origins of why juries hearing criminal cases came to have 12 members in the first place. Judge Graffeo wrote that the number may have had a biblical basis (the 12 tribes of Israel and Jesus’ 12 apostles, for example) before becoming the standardized number in England about the 14th century.

“The number 12 has long been associated with trial by jury but no one knows why or when the common law settled on that figure,” Judge Graffeo wrote.

Waiver in Writing
In New York, the first state constitutions provided for a trial by jury, but it was not until Article VI, Section18(a) was added in 1962 that the size of juries in criminal trials was placed at 12. CPL Section 2’70.05(1) was amended eight years latter to spell out the 12-juror requirement.

The 1938 amendments to the Constitution allowed criminal defendants to waive their right to a jury trial, something the Constitution had allowed in civil trials starting in 1846 as part of the same amendments that provided for the establishment of the Court of Appeals.

The Court’s 1996 ruling in People v. Page, 88 NY2d 1, affirmed that defendants could waive their right to a trial by 12 jurors by consenting to the substitution by a deliberating juror by an alternate, provided they do so in writing in open court. Oral consent is insufficient, the Page Court found.

The majority of the Court held yesterday that defendants are permitted to waive! fundamental constitutional rights in many circumstances, such as the right to counsel and the right to testify or present a defense. Waiver of the “common-law jury” under Article 1, Section 2 is also permissible, as long as it is done knowingly and voluntarily, and with the approval of the trial judge, the Court determined.

Judges Eugene F. Pigott Jr., Theodore T. Jones Jr., Robert S. Smith and Susan Phillips Read joined in Judge Graffeo’s ruling.

The dissenters focused on Article VI,Section 18 of the Constitution as containing “clear and unambiguous language” setting 12 as the size of juries in criminal trials.

“There is no language in the Constitution that permits a felony jury trial with fewer than twelve jurors,” Judge Ciparick wrote.

Prosecutors at Mr. Gajadhar’s 2002 trial for killing a man in a dispute over taxicab repairs had argued for a mistrial when the 12th juror became incapacitated. Mr. Gajadhar asked that the remaining jurors go back to work.

The trial judge, Justice Michael J. Obus, accepted the defendant’s request, once Mr. Gajadhar executed a written waiver of his right to a jury trial in open court. Justice Obus had earlier dismissed the alternate jurors after the defense indicated it would not consent to substitution of alternate jurors once deliberations began.

Convicted by the 11-member jury and sentenced to 20 years to life, Mr. Gajadhar appealed. He argued that despite his request to have the shorthanded jury make a decision and his signing of the waiver, he is prohibited from waiving his constitutional and statutory rights to a trial by a jury with 12 members.

In People v. Gajadhar, 38 AD3d 127 (2007), the Appellate Division, First Department, unanimously upheld Mr. Gajadhar’s conviction and determined that any earlier decisions that held that juries at criminal trials must have 12 members had been “implicitly overruled” (NYLJ, Jan. 24).

Paul Weiner of the Legal Aid Society represented Mr. Gajadhar.

“We are very disappointed,” he said yesterday. “We really felt very strongly that you could not have an 11-person jury in New York. We felt that the language of the New York state Constitution, the language of the statute, supported that. That has been the law up till now.”

Assistant Manhattan District Attorney Hilary Hassler argued for the prosecution.

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