Articles Posted in CRIMINAL PROCEDURE

There are generally no classifications of people who are exempt or disqualified from jury duty in New York State. However, in order to be initially selected for the jury pool in your county, you must be a citizen of the United States as well as a resident of the particular county that has summoned you for jury duty; have never been convicted of a felony; be at least 18 years of age and be able to communicate in English. See Jud Law § 510. If you don’t satisfy all of these qualifications you are ineligible for jury duty in New York State.

Prior to January 1, 1996, active members of the armed forces; elected federal, state, city and local officers; the heads of certain government agencies; and federal or New York State judges were deemed disqualified to serve as jurors. See Jud. Law 511 (1995). These statutory disqualifications were repealed effective January 1, 1996.

Furthermore, prior to January 1, 1996, certain full-time religious practitioners, certain members of the medical field including doctors, dentists, nurses, licensed physical therapists and even embalmers as well as attorneys, fire personnel, sole proprietors engaged in the full-time operation of their business, parents or guardians with children under the age of 16 and those over 70 years of age were exempt from jury duty. These statutory exemptions were repealed effective January 1, 1996.

Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. This ancient rule of statutory construction is codified in New York McKinney’s Statutes § 240 titled “Expression of one thing as excluding others”.

Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)
Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.

Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not “been duly and regularly licensed and admitted to practice law in the courts of record of this state” from acting or holding themselves out as attorneys.

The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478

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The simple fact is, the practice of the issuing officer prosecuting their own New York traffic tickets is allowed only because of an outright Judicial hijacking by the court’s of the State Legislature’s power. Generally, the New York State Constitution establishes that the Legislative Branch (consisting of the New York State Assembly and New York State Senate) enact the laws (with the consent of the governor) (see NY Const. Art. 3, § I).

The New York State Executive branch enforces and carries out the laws enacted by the New York State Legislature (See NY Const. Art. IV) and the New York State Judiciary branch interprets and applies the laws enacted by the Legislature (NY Const. Art. VI). It is not the function of the Executive and/or the Judiciary branches to create laws.
This division of powers and responsibilities is commonly known as the “Separation of Powers” doctrine most of us learned about early in our scholastic careers. The “Separation of Powers” doctrine is a bedrock principle in this country as well as in New York. Each branch of government should be free to carry-out its lawful duties free from the improper interference from the other branches of government. New York State Inspection, Sec. and Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 485 N.Y.S.2d 719, 475 N.E.2d 90 (1984).

Therefore, whether they agree with the law or not, law enforcement (which is part of the Executive Branch) must enforce a law duly enacted by the Legislature. For example, it’s not for law-enforcement to decide that drugs should be legal and refuse to enforce our drug laws. Similarly, absent some constitutional infirmity, judges are bound to impose and interpret the laws as written by the Legislature whether they agree with them or not.

Applying the Separation of Powers Doctrine to attorney admissions to practice law in New York, it is the New York State Legislature that has the unrestricted power to determine the procedures and by what evidence the qualifications for admission as an attorney to the New York State Bar should be ascertained. In re Cooper, 22 N.Y. 67 (1860). In fact, in Cooper, the Court of Appeals noted that the authority and power to admit attorneys to practice in the State of New York is not an inherent power of the courts but is entirely subject to legislative action.

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So your New York Criminal case is heading to jury selection. At jury selection both your criminal defense attorney and the prosecutor will have an opportunity to question potential jurors chosen from the jury pool. (Jury selection itself will be discussed in a later blog). How is the jury pool assembled? Where does the commissioner of jurors for the county your case is be tried in get the names of people to summon for jury duty?

Potential jurors’ names are selected from such lists as voter registration, drivers’ license holders, registered motor vehicle owners, tax payers, those on public assistance, those collecting unemployment and/or those who have volunteered for jury duty. NY Jud. Law § 506. Therefore, that old-time belief that if you don’t vote you won’t be chosen for jury duty is no longer the case. Because one might be discouraged from voting for fear of being selected for jury duty does violate one’s right to vote. Marcus v. Levin, 198 A.D.2d 214, 603 N.Y.S.2d 323 (2nd Dept. 1993).

From the above mentioned lists, the commissioner of jurors randomly selects the names of potential jurors. This random selection may be done mechanically or by any other method to ensure random selection. NY Jud. Law § 507. The randomly selected individuals will make up the jury panel from which your jury will ultimately be selected.

How jury pools are chosen in a New York misdemeanor cases depends on what type of court your case is in. Section 2012 of New York’s Uniform District Court Act, New York’s Uniform City Court Act or of New York’s Uniform Justice Court Act, prescribes how jury panels are chosen in each of the aforementioned courts. In the New York City Criminal Court, the jury pool or panel is chosen in the same manner as in the Supreme Court in counties within cities having populations of one million or more.

When one reviews Section 2012 of the aforementioned acts, one realizes the section is not very enlightening. Both the New York State District Court Act and the New York State City Court Act merely tell us that jurors may be summoned as prescribed by the rules of the appellate department in which the particular court sits. So in reality, to determine how a jury pool is selected in a District or City Court we first turn to the CPL 360.10(2) which directs us to Section 2012 of the District or City Court acts as the case may be. After we look up Section 2012 in either act, it directs us to the appellate division rules for the department in which the particular city or district court sits. Now you know why lawyers like to get paid by the hour. It’s as if these statutes and rules were written by 3 different people who had no idea what the others were writing.

Section 2012 of the Uniform Justice Court Act is evening less enlightening bordering on comical. This section simply informs us that the jury panel in Justice Court trials is to be selected in accordance with the rules. What?! What Rules?! This is really comedic. Therefore, if you are going to trial in a local Justice of Village Court, the jury panel will be selected in accordance with the Rules – whatever they may be.

The order of proceeding in a jury trial in a New York State local criminal court is the same as those in a jury trial in a superior court when one is charged by indictment. CPL § 360.05. Therefore, the order of a jury trial in local criminal court is guided by CPL § 260.30. See CPL § 360.05.

The order of a jury trial in New York local criminal courts is as follows:

1. A jury must be selected and then sworn in. CPL § 260.30(1)

As a New York criminal defense attorney, at a law firm that handles a lot of criminal trials, I often am asked by clients charged with misdemeanors and/or violations in a New York State local criminal court if they must appear in court with me for trial. Generally a defendant must be present during his or her trial. CPL § 340.50 (1).
However, where a defendant is represented by an attorney, a court may, upon written motion by the defendant, waive the defendant’s appearance at trial provided the prosecutor doesn’t object. The defendant must file a written signed and notarized statement declaring the he or she waives their right to be present at trial and authorizing their attorney to conduct their defense in their absence. CPL § 340.50(2).
A defendant may also be excluded from his or her trial if they act in disruptive and disorderly manner to the point that the trial cannot proceed. Before a judge can exclude a defendant from his or her own trial, the defendant must be accorded a warning indicating that the defendant will be removed from the courtroom if he or she continues to act in a disruptive and disorderly manner. CPL § 340.50(2).
In reality, it is common place for defendants not to appear for traffic violation trials but instead to hire an attorney who appears with a signed and notarized “Authorization to Appear”. The written notice requirement is very often overlooked by the court and the prosecutor. However, there are some courts that require the formality of a written motion where the defendant chooses to go to trial on a traffic violation but not where the defendant chooses instead to have his attorney plead guilty to a reduced charge.
One judge who employs this policy is J. Glenn Galbreath of the Cayuga Heights Village Court. J. Galbreath has no problem waiving a traffic violator’s appearance at trial and taking pleas from attorneys with authorizations to appear signed by their clients. However, where a defendant chooses instead to proceed to trial on his or her traffic matter, J. Galbreath requires a written motion. Did somebody say coercive? Take a plea and save a trip to court or proceed to trial and either come to court or pay a lawyer to draft a motion. Sounds a bit coercive to me.
Not only does a defendant have a right to be present at trial, both the United States Constitution and the New York State Constitution grant a defendant the right to be present at all material stages of trial. Therefore, reversal of conviction was required where a defendant was not present during closing arguments and had not waived his presence or waived his presence by disorderly conduct. Benn v. Stinson, 917 F.Supp. 202 (1995).

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So you’ve decided to take your New York criminal case to trial. The People’s plea offer is unacceptable and your attorney, after carefully weighing the odds and risks, has advised you to reject the People’s offer and go to trial. As I said in my last blog, at the New York criminal defense law firm of Tilem & Campbell, if we take a New York criminal case to trial, we generally advise our clients to have a jury trial instead of a being tried by a single judge. So what happens next? How does a New York criminal trial proceed in a local criminal court?

Where a defendant is charged in a local criminal court with a misdemeanor, he or she is entitled to a jury trial. However, within New York City, one charged with a misdemeanor is only entitled to a jury trial if the potential sentence is more that six months. CPL § 340.40(2). The right to a jury trial in misdemeanor cases is statutory only as the New York State Constitution does not provide a right to a jury trial where the charges are less than a felony. People v. Erickson, 302 N.Y. 461, 99 N.E.2d 240 (1951); see also Article I, § 2 and Article VI, § 18 of the NYS Constitution; NY Civil Rights Law § 12 (In all criminal prosecutions, the accused has a right to a speedy and public trial, by an impartial jury. However, it has been held that this section only guarantees the same right to trial found in the Sixth Amendment to the federal constitution and that right only applies where a defendant is facing more than six months incarceration).

However, the statutory right to a jury trial in misdemeanor cases in New York was passed by the Legislature in response to the United States Supreme court’s 1970 ruling in Baldwin v. New York, which essentially held that the Sixth Amendment to the