People v. Ivery , 96 A.D.2d 712 ( 1983 )

—• Judgment reversed, on the law, and a new trial granted. Memorandum: Upon this appeal from a conviction for assault in the first degree, defendant contends that a new trial is required because the trial court improperly discharged a sworn juror. We agree. After the People rested and during the prosecutor’s cross-examination of a defense witness concerning a prior robbery conviction, a juror requested permission to approach the bench. He told the Trial Judge that he considered the prosecutor’s question “irrelevant to this case.” The prosecutor then asked the juror “if the Judge were to tell you that it did have relevance in the case and that there was a purpose for it and that’s why he’s allowing the question, would you be able to put your feelings aside and follow his instructions now that you feel this way?” The juror replied “Yes”. The Trial Judge explained to the juror that questions about the criminal record of a witness may be relevant on the issue of credibility. The prosecutor then asked the juror “have you made up your mind already on this defendant’s guilt?” The juror replied “I feel I shouldn’t answer that.” Following this colloquy the prosecutor requested that the juror be discharged “for cause” (see CPL 270.15, subd 4) because his reluctance to answer the prosecutor’s question directly implied that he had already made up his mind. The court agreed and dismissed the juror. To justify the discharge of a juror after the jury has been sworn but before rendition of a verdict, the trial court must find that the juror is “grossly unqualified” to serve (CPL 270.35). This statutory test places a greater burden upon the moving party than if the juror was challenged for cause (People v Meyer, 78 AD2d 662, 664; see, also, People v Harris, 84 AD2d 63, 91, affd 57 NY2d 335, cert den_US_, 51 USLW 3680). Upon this record it was error for the Trial Judge to conclude that the juror was grossly unqualified to serve. The juror stated repeatedly that he would follow the court’s instructions. Here, the better practice would have been for the Trial Judge to have conducted a further inquiry, in camera, before concluding that the juror was grossly unqualified to serve (see Smith v Phillips, 455 US 209, 215-218; People v Argibay, 57 AD2d 520, affd 45 NY2d 45; People v Gordon, 77 AD2d 662). We have held that even a juror who has formed an opinion as to guilt or innocence may sit if he believes it will not affect his verdict {People v Goldfeld, 60 AD2d 1, 10). The defendant has a constitutional right to a particular jury chosen according to law, in whose selection he has had a voice (NY Const, art I, § 2). As the Court of Appeals aptly stated almost a century ago, “The law prescribes the qualifications of jurors. The court cannot add to or detract from them. It cannot itself select the jury, directly or indirectly. It cannot in its discretion, or capriciously, set aside jurors as incompetent, whom the law declares are competent, and thus limit the selection of the jury to jurors whose names may be left. If this is done, a legal right is violated, for which an appellate court will give redress” (Hildreth v City of Troy, 101 NY 234,239). We have' considered the other points raised by appellant and find them lacking in merit. Concur — Hancock, Jr., J. P., Denman and Green, JJ.