A Brooklyn appellate court ordered a new trial in a case where a deadlocked jury quickly reached a guilty verdict after the judge replaced a sick juror before getting written permission from the defendant.
“The trial court … deprived the defendant of the opportunity, in consultation with counsel, to make an informed strategic decision as to whether to consent to the substitution or accept a mistrial,” Justice Cheryl Chambers (See Profile) of the Appellate Division, Second Department, wrote in People v. Canales, 2011-09082, ordering a new trial for Olman Canales, who had been convicted on first-degree sexual abuse and other counts.
The original jury was stuck for two days when a juror called in sick. When the juror did not appear a second day, Nassau County Court Judge Norman St. George said he would substitute the last alternate before Canales gave his written consent.
The defense counsel consented but the prosecution opposed. The newly-formed jury reached a verdict 20 minutes later, before Canales was produced.
When Canales was brought to court, St. George told him the substitution had already been made and deliberations had resumed. The judge said it was possible a decision had been reached, but he did not say there had been a verdict.
Canales agreed to the change, but after the verdict was read, he unsuccessfully tried to have it set aside.
Chambers said it was clear St. George, when making the substitution, was intent on moving the case along. “However, expediency does not justify abandoning standards of due process,” she said.
Neal Futerfas of White Plains represented Canales.
Assistant District Attorneys Judith Sternberg and Donald Berk appeared for the prosecution.