Judges Stein, Garcia, Wilson and Feinman concur, Judge Wilson in a concurring opinion.Judge Rivera dissents and votes to affirm in an opinion. Judge Fahey took no part.
On this appeal, we are asked to determine whether the trial court abused its discretion when it chose not to conduct an inquiry of two sworn jurors pursuant to People v. Buford (69 NY2d 290 [1987]). Alerted to a complaint by a courtroom spectator that during a break in the trial the spectator allegedly overheard the jurors refer to defendant by a derogatory term, the trial court immediately called the spectator to the stand and elicited sworn testimony regarding her allegation. At the conclusion of the examination, the judge determined that a Buford inquiry was not required based on the testimony provided. We conclude on this record that the trial court made an implied credibility finding that the spectator was not worthy of belief and therefore a Buford inquiry was not warranted. This determination by the trial court was not reviewed by the Appellate Division. It was error for the Appellate Division to opine as to what remedy was warranted in response to the content of the spectator’s allegation, without determining whether the allegation was credible in the first instance. Accordingly, we reverse the Appellate Division order and remit the case to that Court to exercise its own fact-finding power to consider and determine whether the trial court’s finding as to the spectator’s credibility was supported by the weight of the evidence.I.Defendant was convicted, upon a jury verdict, of murder in the second degree and predatory sexual assault against a child. The issues before us arise from an allegation made by a courtroom spectator at the close of the evidence at defendant’s trial. The record is clear that, on the day in question, the jury entered the courtroom at 9:44 a.m. and the trial continued uninterrupted until the defense rested and the jury was dismissed for the day at approximately 12:04 p.m. The next morning, the trial continued through summations and the court recessed at 10:35 a.m. Shortly thereafter, defense counsel reported to the court that a spectator claimed that, while outside the courthouse the day before, she overheard two female jurors in conversation using a derogatory term to refer to defendant. The trial court immediately directed the spectator to take the witness stand and proceeded to take her sworn testimony.The spectator specifically testified that on the day before, during a 15-minute recess taken by the court, she and her friend were outside the courthouse where she observed two female jurors smoking a cigarette “talking about [defendant's] a scumbag.” She and her friend briefly stopped and listened to the conversation and, later, because she did not think it was “right,” notified defense counsel. The spectator further stated that these jurors were in the back row laughing and making faces during the trial.However, the spectator’s testimony was inconsistent as to when the alleged misconduct occurred. The spectator initially stated that the jurors’ remarks occurred “after court.” Upon further questioning by counsel, the spectator posited that the incident occurred during a 15-minute break in the morning. When told there was no 15-minute break in the morning, she changed her testimony, claiming the conversation took place around noon. The record was unequivocal that the court did not take any break that morning and that the jury was sent home for the day at 12:04 p.m. The spectator also explained that she was ejected from the courthouse on the day in question for “sa[ying] something in the hallway.” The prosecutor pressed her as to whether she was the person who started trouble in the hallway and was directed to leave the courthouse. The spectator denied starting trouble, but acknowledged that a court officer told her to leave the courtroom and that she was not allowed back in until the next day. Although defense counsel had apparently identified the spectator as defendant’s girlfriend, the witness denied being defendant’s paramour, but confirmed that she was his lifelong friend.At the end of the examination, defense counsel asked the court to perform an inquiry of the jurors. The prosecutor argued that the elicited testimony did not meet the standard necessary to trigger the inquiry and asked the court to “make a ruling as to whether [you] find this description credible first.” In immediate response, the judge denied defendant’s request, stating: “I don’t believe that an inquiry of the juror is necessary or appropriate here…[b]ased on what I heard.”The Appellate Division opined that the trial court made no findings, express or implied, including as to the spectator’s credibility. Describing the trial court’s ruling as conclusory, it held the court failed to make “an implied determination that the observer’s testimony was incredible” (144 AD3d 1618, 1621 [4th Dept 2016]). The Court nonetheless concluded that “the jurors’ alleged reference to defendant as a ‘scumbag’ indicated the possibility of juror bias, and thus…the court should have granted defendant’s request to make an inquiry of the jurors” (id.). In contrast, the dissent specifically concluded that the trial court “determined that the spectator’s testimony was not sufficiently credible” to trigger a Buford inquiry “by stating that it was basing its ruling on what it had heard” (id. at 1624 [Smith, J.P. and Peradotto, J., dissenting]). The dissent continued, “[h]ere, especially in light of the significant evidence in the record supporting the court’s determination not to credit the testimony of the spectator, we see no reason to disturb that determination” (id.). Accordingly, the dissent reasoned that because there was “no credible evidence indicating that any juror engaged in misconduct, there was no need for a further inquiry of the individual jurors” (id.). One of the dissenting Justices granted the People leave to appeal (28 NY3d 1190 [2017]).II.A defendant’s constitutional right to an impartial jury verdict is fundamental (see NY Const, art I, §§6, 2; US Const 6th, 14th Amends) and the procedure mandated in our Buford decision to protect that right is critical to our criminal justice system. Two statutory provisions afford the necessary constitutional protection to defendants: CPL 270.35, which governs the procedure for discharge of a sworn juror; and CPL 270.20, which dictates the procedure to be employed when a prospective juror is challenged for cause. As the spectator’s allegation concerned two sworn jurors, CPL 270.35 is implicated. That provision mandates that:“If at any time after the trial jury has been sworn and before the rendition of its verdict,…the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature…the court must discharge such juror”(CPL 270.35 [1]). We have explained that the standard for discharging a sworn juror pursuant to CPL 270.35 “is satisfied only ‘when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict’” (Buford, 69 NY2d at 298 [citation omitted and emphasis added]). Indeed, as we have underscored in the past, “[t]he ‘grossly unqualified’ standard for the removal of a sworn juror upon a record of an obviously partial state of mind is higher than that required for the removal of a prospective juror” during voir dire, which is premised on a finding that the prospective juror “has a state of mind that is likely to preclude him from rending an impartial verdict” (People v. Spencer, 29 NY3d 302, 309-310 [2017], citing Buford, 69 NY2d at 298; CPL 270.20 [1] [b]). Of course, the more exacting standard for discharge of a sworn juror makes perfect sense — as a defendant has a constitutional right to be tried by a jury “in whose selection [the defendant] has had a voice” (Buford, 69 NY2d at 297-298 [internal quotation marks and citation omitted]). Particularly relevant here, we expressly held that “[a] ‘Trial Judge generally is accorded latitude in making the findings necessary to determine whether a juror is grossly unqualified under CPL 270.35, because that Judge is in the best position to assess partiality in an allegedly biased juror’” (Spencer, 29 NY3d at 310, quoting People v. Rodriguez, 71 NY2d 214, 219 [1988]). There is no one-size-fits-all approach to address allegations of juror misconduct and “each case must be evaluated on its unique facts to determine whether a particular juror must be disqualified under CPL 270.35″ (Buford, 69 NY2d at 299).Here, unlike many of our prior cases, the allegation of juror misconduct did not come from the wording of a jury note, the personal observations of court personnel, or a statement from an individual juror. Instead, the allegation came from a courtroom spectator — and defendant’s lifelong friend. The trial court, when presented with the third-party allegation of juror misconduct, rather than immediately questioning the jurors, and possibly unnecessarily intruding on the sanctity of the jury, instead chose to first question the source of the allegation to ascertain its reliability. The trial court — which demonstrated its careful attention to the proceedings as evidenced by its earlier removal of a juror who had fallen asleep during trial and its utilization of a Buford inquiry with respect to the alleged conduct of a different juror — called the spectator to the stand and asked her a series of questions under oath. The court’s determination to examine the source of the allegation before proceeding to a Buford inquiry of the sworn jurors based on the mere reporting of the allegation itself is within the discretion of the trial court and is, indeed, a procedure that has been found to be reasonable (see People v. Matiash, 197 AD2d 794 [3d Dept 1993], lv denied 82 NY2d 899 [1993]).In People v. Matiash, the Appellate Division reviewed the action of the County Court in conducting an inquiry of a witness as opposed to a juror. The Third Department stated:“County Court chose to begin its in camera interrogation not with the jurors themselves, but rather with the witness in an effort to first ascertain exactly what that witness had seen and heard. This being the least disruptive method of initially ascertaining the particulars, we see no error in this mode of proceeding”(197 AD2d at 796). Thus, as here, the trial court in Matiash used its fact-finding power along with its unique ability to assess the demeanor of the witness alleging juror misconduct to conclude that the allegations did not trigger a Buford inquiry. In Matiash, the trial court’s conclusion was based on the “innocuous” nature of the allegation (id.). In this case, the trial court’s conclusion was based on the lack of credibility of the interested spectator. While the trial court’s reasoning here was not as explicit as that of the court’s in Matiash, the record below supports the conclusion that the trial court made an implied determination that the spectator was unworthy of belief in direct and immediate response to the prosecutor’s request that the court rule as to whether it found the spectator’s “description credible” before proceeding to the Buford inquiry.We have previously allowed that a trial judge, in the exercise of his or her discretion, may fashion an appropriate procedure to initially determine whether a Buford inquiry is required under the facts of the particular case. For example, in People v. Mejias (21 NY3d 73, 77 [2013]), a note from a juror stated, “We want to know how/when and under what pretext [a codefendant] met [defendant].” Defense counsel argued that “the use of the word ‘we’ in the note implied that at least two of the jurors had been engaged in premature deliberations” and requested that the court conduct a Buford inquiry of the juror who wrote the note (id.). We held it was not an abuse of discretion to forego the Buford inquiry and instead address the entire panel in order to avoid isolating any particular jurors (see id. at 77-78).In this regard, a trial court’s “investigation of juror misconduct or bias is a delicate and complex task” (United States v. Peterson, 385 F3d 127, 134 [2d Cir 2004] [internal quotation marks and citation omitted]), and courts must have broad flexibility in matters involving the jury. We review a court’s decision regarding a juror’s alleged impartiality for abuse of discretion because the trial judge, having the ability to continually observe the jury in court, is in the best position to devise an appropriate remedy (Mejias, 21 NY3d at 80; see also Peterson, 385 F3d at 134). As the Supreme Court has explained, a defendant’s right to due process does not require a trial court to question the juror alleged to have engaged in substantial misconduct every time there is an allegation of jury impartiality (see Smith v. Phillips, 455 US 209, 217 [1982]). Rather, “[d]ue process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen” (id.). Indeed, “in determining whether a hearing must be held, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source” (United States v. Angulo, 4 F3d 843, 847 [9th Cir 1993]). Thus, “while a court looking into juror misconduct must investigate and, if necessary, correct a problem, it must also avoid tainting a jury unnecessarily….In this endeavor, sometimes less is more” (United States v. Cox, 324 F3d 77, 88 [2d Cir 2003]). Here, the trial court determined the effect of the alleged prejudicial occurrence by calling the spectator to the stand and eliciting her sworn testimony. Such a procedure protected defendant’s due process rights and ensured that the jury proceedings were not “jeopardized by unauthorized invasions” (Remmer v. United States, 347 US 227, 229 [1954]).We emphasize that our procedure set forth in Buford stands as the framework to evaluate sworn jurors who allegedly engaged in substantial misconduct preventing the rendering of an impartial verdict. Trial courts, when presented with some credible information indicating that a sworn juror may be grossly unqualified, must conduct a “probing and tactful inquiry” of the juror (see 69 NY2d at 299). However, if the trial judge determines, upon inquiry, that the allegation of misconduct is not credible, there is no reason to take the next step to address the nature of the alleged misconduct — whether it is premature deliberations, as in Mejias, or the preexisting bias of a juror. Unnecessarily confronting sworn jurors with unfounded, irrelevant, or incredible allegations of misconduct may impact the impartiality of the jury, and mandating such an intrusive procedure regardless of the particular circumstances of a case may only encourage untoward tactics intended to disrupt the proceedings. Accordingly, we must trust our trial courts to make the determination in the first instance as to whether to conduct an inquiry of a sworn juror. In so doing, a defendant’s right to an impartial verdict is properly balanced with the jury’s right to adjudicate “free from outside interference” (People v. Rivera, 15 NY3d 207, 212 [2010]). Here, we conclude that the procedure followed by the trial court to first examine the spectator to ascertain the reliability of her allegation was not an abuse of discretion as a matter of law.Under our system of appellate review, every litigant is afforded at least one review of the facts (People v. Bleakley, 69 NY2d 490, 494 [1987]). Since the Appellate Division did not consider the threshold issue — whether the trial judge was justified in finding the spectator incredible and therefore determining the Buford inquiry was not required — the case is remitted to that Court to consider and determine whether the trial court’s credibility finding was supported by the weight of the evidence.* If, on remittal, the Appellate Division finds, upon its own factual review, that the record supports the trial court’s determination that the spectator lacked credibility, no further action was required. If the Appellate Division finds that the credibility determination was not supported, it must determine whether the trial court abused its discretion in not taking further action (see e.g. Buford, 69 NY2d at 299; Mejias, 21 NY3d at 79-80). Contrary to the dissent’s assertion, our decision does not detour from the guidance we provided in Buford. To be sure, a credible allegation that a juror is grossly unqualified to serve or engaged in substantial misconduct within the meaning of CPL 270.35 cannot be ignored by the trial court, and failure to appropriately remedy the matter is reversible error.Regarding the second issue presented on this appeal, the trial court did not commit reversible error by failing to state its express reasons for denying defendant’s request for a Buford inquiry after the examination of the spectator (compare Buford, 69 NY2d at 299 [holding that the trial court's reasons for its determination following a Buford inquiry should be placed on the record]). While such practice is not required under our precedent, it remains the best practice to enhance appellate review.Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2]), and issues raised but not determined on the appeal to that Court.
