Upon considering the defendant's instant application brought pursuant to Section 170.15(3)(b) of the Criminal Procedure Law seeking the removal of the instant criminal action from the Pelham Town Court to another local court for disposition, the Court has considered the [*2]following papers: notice of motion, affirmation and reply affirmation of counsel for the defendant, Scott M. Druker, Esq., and the affirmation in opposition and memorandum of law of Assistant District Attorney Virginia A. Marciano.

RELIEF REQUESTED

By notice of motion, the defense moves the Court to remove the instant criminal action presently pending against the defendant in the Pelham Town Court, charging the misdemeanor offenses of Resisting Arrest as charged pursuant to Penal Law §205.30, Obstructing Governmental Administration as charged pursuant to Penal Law §195.05, and the violation offenses of Disorderly Conduct as charged pursuant to Penal Law §§240.20(1), 240.20(2) and 240.20(3), to either the Yonkers City Court, the White Plains City Court, the Mount Vernon City Court, or the New Rochelle City Court for disposition by jury trial due to the alleged inability of the Pelham Town Court to form a jury in this case pursuant to Section 170.15(3)(b) of the Criminal Procedure Law (CPL).

FACTUAL BACKGROUND

On February 7, 2013, the defendant was arraigned before the Pelham Town Court on a felony complaint. On May 30, 2013, the People filed a superseding misdemeanor information in place of the extant felony complaint, charging the defendant with the misdemeanor offenses of Resisting Arrest as charged pursuant to Penal Law §205.30, Obstructing Governmental Administration as charged pursuant to Penal Law §195.05, and the violation offenses of Disorderly Conduct as charged pursuant to Penal Law §§240.20(1), 240.20(2) and 240.20(3). The charges brought against the defendant under the superseding misdemeanor information are supported by the allegations of Police Officer Paci of the Village of Pelham Manor Police Department (PMPD), who avers that the defendant engaged in a verbal and physical altercation with members of the PMPD in the area of 1028 Washington Avenue in the Village of Pelham Manor while they were investigating the conduct of the defendant's associate Patrick Dumetz

Following the defendant's arraignment on the instant superseding misdemeanor information on May 30, 2013, the Pelham Town Court scheduled the jury trial of the instant criminal matter to commence on September 18, 2013. The scheduled jury trial was unable to proceed on September 18, 2013 due to the erroneous failure of the Pelham Town Court to send out any juror summonses to prospective members of the jury panel, which prompted the Pelham Town Court to re-schedule the jury trial of this matter to commence on October 2, 2013. On October 2, 2013, merely 14 of the 30 prospective jurors who had been sent a juror summons by the Pelham Town Court responded to that courthouse in response to the juror summons each of them had received four days earlier on September 28, 2013. Defense counsel submits that he believes that none of the fourteen prospective jurors who had responded to the courthouse were of African descent. Following a conference with the parties and upon their consent, the Pelham Town Court re-scheduled the jury trial of this matter to commence on December 11, 2013. The [*3]People submit that the Pelham Town Court clerks had stated that they intend to send juror summonses to 60 prospective jurors in preparation for the defendant's upcoming trial date.

On October 18, 2013, the defense filed the instant motion with the Criminal Calendar Office of the Chief Clerk of the Supreme and County Courts of Westchester County, seeking the removal of the instant criminal action presently pending against the defendant in the Pelham Town Court under Pelham Town Court No.2011-07819, to either the Yonkers City Court, the White Plains City Court, the Mount Vernon City Court, or the New Rochelle City Court for disposition by jury trial. In support of the instant motion, the defense first alleges that the Pelham Town Court is logistically incapable of forming a jury due to their inability to bring forth a sufficient number of jury panelists to their courthouse for the purpose of being selected to serve on a petit jury. In addition, the defense alleges that the Pelham Town Court is unable to form a fair and impartial jury to preside over the trial of the defendant in this case due to the disparately high percentage of Caucasian residents as compared to African-American residents of the Town of Pelham. In opposition to the defendant's instant motion, the People seek to refute the defendant's claim concerning the purported inability of the Pelham Town Court to form a jury through reliance upon the assurances provided by the Pelham Town Court clerks to the effect that they have consistently been able to form juries for criminal trials in the past, and the People reject the defendant's race-based claims of bias and partiality of the Pelham Town Court's jury pool.

The instant matter was assigned to this Court for disposition on October 25, 2013 by the Hon. Alan D. Scheinkman, the Administrative Judge of the Ninth Judicial District.

CONCLUSIONS OF LAW

The right of a defendant to seek the removal of an accusatory instrument from a local criminal court to another local criminal court located within the same county is governed exclusively by CPL 170.15 which, insofar as relevant here, provides that the County Court may transfer a criminal proceeding pending in one local criminal court within the county to another local criminal court within the same county, where it can be shown that the disposition of that criminal proceeding within a reasonable period of time is unlikely due to the inability of the local criminal court from which removal is sought to form a jury in a case where the defendant is entitled to, and has requested, a jury trial (see CPL 170.15[3][b]).^[FN1] It is significant to note that unlike the provisions of CPL 230.20(2) which provide a procedural vehicle for the transfer of an indictment from the superior court of one county to the superior court of another county based upon a demonstrated inability of the defendant to obtain and fair and impartial trial in the originating county, the provisions of CPL 170.15 do not explicitly authorize the removal of a [*4]criminal prosecution from one local criminal court to another local criminal court on that basis.^[FN2]

Further complicating the Court's determination of the applicable scope of CPL 170.15(3)(b), no appellate authority exists with respect to this issue and those trial-level courts which have had occasion to address this issue are split as to whether or not the statute can be read to provide for such a basis for removal. Specifically, in People v Smith (93 Misc 2d 326) the Rensselaer County Court (Travers, J.) held that neither CPL 170.15 nor any other provision of the Criminal Procedure Law provides authority for the removal of a criminal case from one local criminal court to another local criminal court upon a claim that a fair and impartial trial cannot be had in the originating court (see generally People v Berg, 76 Misc 2d 430; People v Capuano, 68 Misc 2d 481). However, this Court finds that result troubling in view of the constitutional implications of such an interpretation of the statute, as it must be considered axiomatic that where a defendant is entitled to a jury trial for the disposition of pending criminal charges, this entitlement must be deemed to include the right to have the charges heard by a fair and impartial jury which is not influenced by bias or prejudice (see Groppi v Wisconsin, 400 US 505; Murphy v Florida, 421 US 794; Sheppard v Maxwell, 384 US 333; Irvin v Dowd, 366 US 717).

Consistent therewith, this Court finds the more expansive view of the statutory authority of CPL 170.15(3)(b) adopted by the Tompkins County Court (Dean, J.) in People v Roberts (95 Misc 2d 41) to be more consistent with the due process principles set forth in the Fourteenth Amendment to the United States Constitution, as that court held that the statute must be read in a manner that allows for removal in order to ensure that the matter will be heard by a fair and impartial jury despite the absence of express language in the statute providing for removal on that basis (see generally People v Kessler, 77 Misc 2d 640; Matter of Jones, 69 Misc 2d 640). Indeed, this Court believes that such an interpretation of CPL 170.15(3)(b) is a constitutional imperative, as the "failure to accord an accused a hearing by a panel of impartial, indifferent jurors violates even the minimal standards of due process" (People v Roberts, 95 Misc 2d at 45, citing Groppi v Wisconsin, 400 US 505).

Of course, the Court's inquiry does not end here, as the instant application must next be examined to determine the merits of the defendant's argument that the removal of the instant criminal charges from the Pelham Town Court pursuant to CPL 170.15(3)(b) is necessary and appropriate in view of the defendant's argument that the disposition of the instant criminal proceeding within a reasonable period of time is unlikely due to the inability of the Pelham Town Court to form a fair and impartial jury to hear this case. Specifically, this Court must examine the support proffered by the defendant to substantiate his initial claim that the Pelham Town Court is logistically incapable of forming a jury, and his secondary claim that the Pelham Town Court is unable to form a fair and impartial jury to preside over the trial of the defendant's case.

Upon considering the substance of the argument raised by the defendant in support of his initial claim that Pelham Town Court is logistically incapable of forming a jury, the Court notes [*5]that the defendant relies exclusively upon his observation that the clerks of the Pelham Town Court failed to send out any juror summonses to prospective members of the jury panel in advance of the first scheduled trial date of September 18, 2013, and subsequently failed to send out a sufficient number of juror summonses far enough in advance of the second scheduled trial date of October 2, 2013 to enable the defendant's jury trial to commence on that date.^[FN3] Contrary to the defendant's contention, even when considering all reasonable inferences in favor of the defense, the failure of the Pelham Town Court clerks to remember to send out juror summonses in the first instance, or to remember to send out a sufficient number of juror notices in a timely fashion on a subsequent occasion, cannot be considered a sufficient sample size of data to lead inexorably to the conclusion that the Pelham Town Court is logistically incapable of forming a jury due to their inability to bring forth a sufficient number of jury panelists to their courthouse for the purpose of being selected to serve on a petit jury. Simply stated, although it is highly unfortunate that the Pelham Town Court clerks failed on two successive occasions to remember to send out a sufficient number of juror notices in a timely fashion to enable the defendant's jury trial to commence on the scheduled trial dates, this Court finds that it is not reasonable to draw the sweeping conclusion therefrom, as urged by the defendant, that the Pelham Town Court could not implement the necessary remedial administrative measures to ensure that their clerks do not, yet again, fail to send out an adequate number of juror summonses in a timely fashion. Accordingly, this Court rejects the defendant's claim that the Pelham Town Court is logistically incapable of forming a jury in this case due to the alleged inability of the personnel thereof to bring forth a sufficient number of jury panelists to that courthouse for jury service, finding same to be impermissibly speculative and otherwise lacking in substantive support.

Turning next to consider the secondary argument raised by the defendant in support of his claim that the Pelham Town Court is unable to form a fair and impartial jury to preside over the trial of the defendant in this case. Specifically, the defense alleges that the Pelham Town Court is unable to form a fair and impartial jury to preside over the trial of the defendant in this case due to the disparately high percentage of Caucasian residents as compared to those residents of African descent within the Town of Pelham. In support of this claim, defense counsel relies heavily upon his personal observations on October 2, 2013, when he relates that none of the 14 prospective jurors who responded to the Pelham Town Court for the defendant's second scheduled trial date were African-American. In addition, the defendant attempts to supplement his argument by referencing demographic statistics regarding the Town of Pelham which were taken from Wikipedia and attributed to the United States Census of 2000, indicating that the Town of Pelham is comprised of "87.33% White" residents, "4.57% Black or African American" residents, "2.23% from two or more races", and "Hispanic or Latino of any race were 6.02%" of the resident population. From his inexpert conclusion regarding the ethnic make-up of the 14 prospective jurors who responded to the Pelham Town Court for jury service on October 2, 2013 [*6]and the demographic statistics he cites, defense counsel makes the conclusory argument that the Pelham Town Court "will be unable to form a jury that is unbiased". Most unfortunately, defense counsel supports his argument that jurors from the Town of Pelham would be incapable of being fair and impartial, or "unbiased", solely upon his perception of their predominant ethnic make-up.

In order to determine the appropriate standard by which allegations that a court is unable to form a fair and impartial jury to preside over a trial due to a claimed underrepresentation of potential jurors of African descent in the jury pool should be measured, this Court looks to the analogous case law which has been developed in this State in connection with change of venue applications brought pursuant to CPL 230.20(2) upon claims that the defendant could not receive a fair and impartial trial in the originating jurisdiction. In this regard, it is axiomatic that applications for a change of venue prior to jury selection are granted under only the most extreme circumstances (see generally People v Porco, 30 AD3d 543; People v Boss, 261 AD2d 1), as the successful proponent must show that the claimed underrepresentation of persons of a particular race in the jury pool was the result of "systematic exclusion" in order to warrant granting the motion (see People v Faulk, 251 AD2d 345; see also People v Magee, 208 AD2d 977). This standard respects the constitutional principles at issue under the Sixth Amendment to the United States Constitution, which "requires that jury panels be drawn from a source representing a fair cross section' of the community in which the defendant is tried . . . In other words, the Sixth Amendment guarantees the opportunity for a representative jury venire, not a representative venire itself" (People v Hobson, 227 AD2d 643, 643-644, quoting United States v Jackman, 46 F3d 1240, 1244).

Measured against this applicable standard, the defendant's ill-supported supposition regarding the ethnic make-up of the 14 prospective jurors who responded to the Pelham Town Court for jury service on October 2, 2013, as well as his recitation of statistics indicating that there are far more Caucasian residents than residents of African descent in the Town or Pelham, in and of itself, provides no support his conclusory argument that the Pelham Town Court "will be unable to form a jury that is unbiased". Most significantly, the defendant does not even suggest, let alone make any effort to demonstrate that the actual or perceived underrepresentation of potential jurors of African descent in the jury pool was the result of systematic exclusion, i.e. exclusion "inherent in the particular jury-selection process utilized" (Duren v Missouri, 439 US 357, 366). In this regard, it has been held that "a mere belief, suspicion or feeling that an impartial jury cannot be had is an insufficient ground to grant the (change of venue) motion" (DeBolt v Barbosa, 280 AD2d 821, 824, citing Kupka v County of Westchester, 160 AD2d 681).

Accordingly, upon the record presented, this Court finds the defendant's removal motion to be patently deficient due to his complete failure to allege any facts which demonstrate that the claimed underrepresentation of potential jurors of African descent in the jury pool of the Town of Pelham was the result of systematic exclusion (People v Guzman, 60 NY2d 403, 411, cert. denied 466 US 951; People v Hobson, 227 AD2d 643, app. denied 88 NY2d 986; People v Branch, 244 AD2d 562; People v Battle, 221 AD2d 648).

Based upon the foregoing, the defendant's motion seeking the removal of the instant criminal action presently pending against the defendant in the Pelham Town Court to another local criminal court within Westchester County for disposition by jury trial pursuant to CPL [*7]170.15(3)(b) is summarily denied due to the failure of the defendant to meet his burden to show that the disposition of this criminal proceeding within a reasonable period of time would be unlikely due to the inability of the Pelham Town Court to form a jury to hear this case.

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

November 18, 2013

Honorable Richard A. Molea

Acting Justice of the Supreme Court