The proceeding before the Court involves a contempt of court charge, pursuant to Judiciary Law § 750(A)(7), against Steven Eigner ("Respondent"), arising out of Respondent's termination of an employee, Jose Cabrera (hereinafter "Juror No. 8"), from Respondent's employ at Artistic Ribbon and Novelty Co., Inc. during the tenure of Juror No. 8 as a juror in a criminal matter pending before this Court entitled People of the State of New York v. Sanchez and Cuebas, Ind. No. 1163-2010.

For the reasons set forth below, the matter is dismissed.

I.PROCEDURAL HISTORY

Juror No. 8 was selected by the parties to be a juror in the above-referenced criminal matter before this Court on February 20, 2013. On or about that date, at the request of Juror No. 8 as well as other jurors, the Part Clerk of this Court prepared a short letter for such jurors to provide to their employers setting forth the anticipated dates of jury service in the matter. [*2]

On February 21, 2013, Respondent contacted the Court via telephone, and informed the Court that Juror No. 8 was his employee at Artistic Ribbon & Novelty Co., Inc., and that he had concerns about the length of Juror No. 8's jury service and its impact on his business.

On that same date, the Court sent a letter to Respondent, dated February 21, 2013, specifically advising Respondent that the law does not provide for exemption from jury service based on potential difficulties caused by Juror No. 8's absence from work. The Court informed Respondent that, given the vagaries of witness scheduling, it could not guarantee a date specific for the end of the trial, but that it did not anticipate that the trial would extend past March 11, 2013. Finally, the Court informed Respondent that Juror No. 8 could not be penalized for performing his jury service and that, pursuant to Judiciary Law § 750, an employer who penalizes an employee for absence due to jury service is subject to punishment for criminal contempt of court.

The Court also advised Respondent of the web address of the court system's webpage where he could access a brochure entitled "Jury Information for Employers," which outlines the obligations of an employer with respect to release of an employee for jury service.

Juror No. 8 served as a sworn member of the jury in the above-listed trial on February 20, 25, 26, 27, 28, and March 1, 4, 6, 7, 8, 11, 12, 13, 14, and 15. On some of those dates, due to witnesses' schedules, the trial did not convene for the entire work day; rather, the jurors were required to be present only a portion of such work day.

On March 8, 2013, Juror No. 8 informed this Court that he was terminated from his employment on March 7, 2013, by Respondent because of his service as a juror. He informed the Court that he had provided Respondent with the letter given to him by the Part Clerk indicating the expected length of his jury service and that Respondent just looked at the letter and threw it into the garbage. Juror No. 8 also informed the Court that, on March 7, 2013, he went to work after the jurors were dismissed for the day at 1:00 p.m. and he was called into Respondent's office and was asked for a letter stating the dates and times that he was on jury duty. Juror No. 8 informed the Court that he told Respondent that he would not receive such letter until jury service was concluded and that Respondent stated, "Get out of my office. I don't want to see you." Juror No. 8 further stated that, as he walked back to his desk, Respondent told him, "Leave the building. I don't want you here." Juror No. 8 then left. Juror No. 8 further informed the Court that his roommate works in the same location and that his roommate informed him that Juror No. 8 would not be allowed into the building because he was no longer employed there.

On March 13, 2012, the Respondent was personally served by the Sheriff of New York County with an Order to Show Cause issued by the Court directing Respondent to show cause on March 29, 2013, as to why he should not be found guilty of criminal contempt of court, pursuant to Judiciary Law § 750(A)(7), for terminating Juror No. 8 for his jury service. See Sheriff's Certificate of Service, dated March 14, 2013.

On March 18, 2013, Respondent filed an affirmation in opposition to the order to show cause contending, in sum and substance, that the termination of Juror No. 8's employment was due to insubordination and absence from work and was unrelated to [*3]his jury service.

II.RELEVANT LAW

Serving on a jury is a vital public service for citizens under our law. Matter of Pringle, 6 Misc 3d 1025A, 2005 NY Slip Op. 50180U, *7 (Sup. Ct., New York Co. 2005); People v. Marr, 67 Misc 2d 113, 118-19 (Justice Ct., Albany Co. 1971). Except perhaps for active military duty, there is no other public function that the government delegates to its citizens more important than jury service. See Marr at 119 (citizens must take jury duty most seriously; important sacrifice to ensure proper functioning of government); "Jury Service in Federal Court", http://www.uscourts.gov/FederalCourts/

JuryService.aspx ("Jury service is one of the most important civic duties you can perform. The protection of rights and liberties . . . largely is achieved through the teamwork of a judge and jury."); Honorable Harlan Fisk Stone, Former Chief Justice, United States Supreme Court ("Jury service is one of the highest duties of citizenship, for by it the citizen participates in the administration of justice. . .").

Indeed, the Constitution of the United States and the Constitution of the State of New York guarantee defendants in criminal trials (and litigants in civil trials) the right to a trial by jury. Judiciary Law § 500. Parties have the right to juries selected from a fair cross section of the community and all eligible citizens have both the opportunity and the obligation to serve. Id.

To that end, a citizen, when called upon to do so, must serve jury duty. It is mandatory. Matter of Pringle, 2005 NY Slip Op. 50180U, *5. Avoiding such jury duty can subject a person to civil and/or criminal penalties. Pringle at *5 (willful refusal to appear in court as prospective juror punishable as criminal contempt under Judiciary Law § 750(A)(1)); see also Judiciary Law § 527(1)(summoned juror who fails to attend subject to civil penalty); Penal Law § 215.50(6)(failure to obey lawful mandate to serve as juror punishable as criminal contempt in the second degree, a Class A misdemeanor).

Due to the significant public importance of jury service and its essential role in perpetuating the system of justice unique to the United States and each of its states, no adverse consequences should result from an individual who must absent him or herself from work to perform jury service. Sabetay v. Sterling Drug, 69 NY2d 329, 337 (1987)(Legislature enacted § 519 to prohibit firing of employees for reasons contrary to public policy); In re Claim of Wilson, 226 AD2d 870, 871 (3d Dept. 1996)(there is a public policy against penalizing persons who serve jury duty); see also Federal Protection of Jurors' Employment Law, 28 U.S.C. §1875; NY Judiciary Law § 750(A)(7).

Indeed, pursuant to Judiciary Law § 750(A)(7), a person who discharges an employee on the basis of the employee's absence from work due to jury service commits criminal contempt of court. The Court may punish such criminal contempt by imposing a fine in an amount up to $1,0000.00 or imprisonment not exceeding thirty days or both. Judiciary Law § 751(1).

The Court's responsibility to ensure that employers do not take adverse action against their employees because of absence from work due to jury service is particularly important because, in New York, an employee does not have a private right [*4]of action for wrongful discharge if he is terminated due to his service as a juror.^[FN1] Matter of Arnold v. NYS Div. Of Human Rights, et al., 70 AD3d 605, 605 (1st Dept. 2010)

(violation of employee's right to be absent from work for jury duty does not give rise to private right of action); Gomariz v. Foote, Cone & Belding Communications, Inc., 228 AD2d 316, (1st Dept. 1996)(legislative history of Jud. Law § 519 indicates purpose was to provide for adequate function of jury system and not to compensate employees fired for serving jury duty); Di Blasi v. Traffax Traffic Network, 256 AD2d 684, 685-86 (3d Dept. 1998)(Jud. Law § 519 does not provide a private right of action against employer for wrongful discharge; court cannot fashion a remedy).

Thus, the Court's rigorous enforcement of Judiciary Law § 750(7)(A) is the only deterrent to prevent willful violations of Judiciary Law § 750(7)(A) by employers.

III.FINDINGS

In the matter before the Court, Respondent terminated Juror No. 8 during the period of time in which Juror No. 8 was serving jury duty pursuant to his statutory obligation to continue his jury service until the conclusion of the trial in which he was engaged. Judiciary Law §§ 525(a); see also In re Diane D., 161 AD2d 861, (Sup. Ct., New York Co. 1994)(empaneled juror who leaves prior to conclusion of trial subject to civil and/or criminal contempt). In addition, Juror No. 8 told the Court he was terminated because of his service as a juror.

Accordingly, the Court directed Respondent to show cause as to why the Court should not hold Respondent in contempt for such actions and impose a fine and imprisonment to deter any such future conduct by him or other similarly situated employers.

Notwithstanding the foregoing, the Court now is withdrawing the Show Cause Order and dismissing the action against Respondent. Following the Court's receipt of Respondent's affirmation in opposition to the Order to Show Cause, Respondent's counsel contacted the Court and inquired whether entering into an agreement with Juror No. 8 pertaining to Juror No. 8's employment might purge any potential contempt and terminate the proceedings. Thereafter, on April 8, 2013, Respondent offered and Juror No. 8 accepted an agreement setting forth certain terms and conditions, a copy of which was received by the Court (the "Agreement").

The Court is mindful that a settlement between two parties does not necessarily purge a criminal contempt of court. See Dep't of Environmental Protection of the City of New York et al. v. Dep't of Environmental Conservation of the State of New York, et al., 70 NY2d 233, 240 (1987). Here, however, the Court notes that it has not made a finding of contempt at this stage of the proceeding. Moreover, the Court finds that, Respondent has demonstrated good faith by entering into an agreement with Juror No. 8 pertaining to his employment with Respondent's company. In addition, the Court is satisfied that Respondent will comply with the provisions of Judiciary Law § 750(7)(A) in the future and that the adverse consequence suffered by Juror No. 8 has been ameliorated by the Agreement he entered into with Respondent with which Respondent [*5]is bound to comply, the Court now withdraws the Show Cause Order and dismisses the proceeding.

IV.CONCLUSION

For the reasons stated above, the Court withdraws the Show Cause Order and dismisses the proceeding.

This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

April 19, 2013

E N T E R:

________________________

Colleen D. Duffy

Supreme Court Justice