Crimes - Jurors - Discharge of Juror - Lack of English Proficiency

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered June 9, 2022, convicting defendant, after a jury trial, of attempted murder in the second degree, and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 14 years, unanimously reversed, on the law, and the matter remanded for a new trial.

Supreme Court discharged a sworn juror following the prosecution's opening statement. The juror, a registered nurse, initially stated that his conscience made him uncomfortable passing judgment. He did acknowledge, however, that he could be fair and could vote appropriately based on the evidence. Following the court's inquiry on this issue, an off-the-record conversation occurred between the court, counsel, and defendant. After this discussion, the court asked a series of questions about the juror's ability to understand English, ultimately inquiring whether "some of the things that you didn't understand are weighing on your conscience in terms of whether or not you could be fair in this case and be a just juror?" The juror's final response was that, yes, "my conscience is telling me that . . . I shouldn't judge anybody." Upon the juror's discharge, defendant's counsel objected.

Taking into account all of the exchanges between the court, counsel, and the subject juror, the record does not support the court's conclusion that the juror was "grossly unqualified" based on lack of proficiency in English (CPL 270.35 [1]; see generally People v Cargill, 70 NY2d 687, 688-689 [1987]; People v Buford, 69 NY2d 290, 298-299 [1987]). Because "there was insufficient reason to discharge the juror," a new trial is required (Buford, 69 NY2d at 299). Concur—Webber, J.P., González, Mendez, Rodriguez, Pitt-Burke, JJ.