People v. Winship, 309 N. Y. 311, 130 N.E. 2d 634 (1955)

Griffin, Richard F.

English

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Buffalo Law Review Volume 6 Number 1 Article 25 10-1-1956 Criminal Law—Jury Richard F. Griffin Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Criminal Procedure Commons Recommended Citation Richard F. Griffin, Criminal Law—Jury, 6 Buff. L. Rev. 52 (1956). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol6/iss1/25 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWVJuryIn People v. Winship,27 the defendant had been convicted of second degreerobbery. During defendant's motions for dismissal and a new trial made prior tosentencing, affidavits were submitted which stated that a prospective juror failed toreveal that he was a member of the Civil Defense Auxiliary Police attached tothe Town of West Seneca Police when asked on the voir dire whether he had anyconnection with or was a member of any law enforcement agency. The defensestated that they would have excused this juror had this fact been known; andrequested further time to explore the matter. The request was denied and sentenceimposed. The prosecution did not submit answering affidavits until after themotion for a hearing was denied.It has long been the rule that prospective jurors have a duty to reveal allinformation pertaining to their competency when examined before trial.28 Failureto disclose this information will not necessarily result in a new trial; but thedecision lies within the sound discretion of the trial court which must determinewhether the defendant has been prejudiced by the juror's silence. 20 The Courtwill insist, however, that all the circumstances relating to the questioning arebefore the trial court when it rules on the motion for a new trial.3 0 If sufficientfacts have not been ascertained, the Court will withhold the final determinationand remit the parties to the trial court for further proceedings,3 ' unless the interestsof justice require a new trial.3 2In the instant case the Court of Appeals felt that the trial court was notadequately informed when it denied defendant's request for more time. The Courtindicated that the trial court might have been justified in denying a hearing ifthe prosecution had submitted answering affidavits sufficient to challenge themovant's statements at the time the trial court disposed of the motion. The Court,therefore, in accordance with their practice, withheld the final determination 3of the appeal so that the defendant could renew his motion for a new trial uponaffidavits and notice of the District Attorney.27. 309 N. Y. 311, 130 N.E. 2d 634 (1955).28. MceGarry v. The City of Buffalo, 70 Hun 597 (N. Y. Sup. Ct., Gen. T.1893); 50 C.J.S. Juries §276 (1947).29. People v. Rosen, 251 App. Div. 584, 297 N. Y. S. 877 (3d Dep't 1937), aff'd,275 N. Y. 627, 11 N. E. 2d 790 (1937).30. People v. Durling, 303 N. Y. 382, 103 N. E. 2d 336 (1952).31. People v. Durling, supra note 30; McHugh v. Jones, 258 App. Div. 111,16 N. Y. S. 2d 332 (2d Dep't 1939), aff'd, 283 N. Y. 534, 29 N. E. 2d 76 (1940).32. People v. Leonti, 262 N. Y. 256, 189 N. E. 693 (1933).33. The Court also held that it was not error for the trial court to refusethe defendant permission to be absent from the courtroom while the People'switnesses described the person who perpetrated the crime. Reason: N. Y. CODEOF CRIMINAL PROCEDURE §356 ... but if the indictment be for a felony the defend-ant must be personally present.COURT OF APPEALS. 1955 TERMThis writer feels that even if the facts are as stated in the defendant'saffidavits (juror an auxiliary policeman, etc.), the Court will refuse to order a newtrial if the trial court again denies defendant's motion. For, although a member ofthe Civil Defense Auxiliary Police may on occasion have the powers of a peaceofficer,34 his work in this area, on a volunteer basis, is not enough to identify himwith the prosecuting authorities so as to show that the defendant was prejudicedby the presence of this particular juror at his trial.35Speedy TrialThe defendant in a criminal case is entitled to a speedy trial.36 While suchright is established to prevent lengthy imprisonment while awaiting trial andpublic suspicion which attends an untried accusation of crime, of equal importance,it prevents the loss of means of establishing the defendant's innocence in that,due to long delay, witnesses may be lost or their memories dulled.37Section 668 of the New York Code of Criminal Procedure provides themeans of enforcing this right.3 8 The Court in People v. Prosser,39 held that adefendant, by not acting under Section 668, does not waive his right to a speedytrial.Some jurisdictions have held that if the defendant does not act with reasonablepromptness in an affirmative manner to seek a speedy trial, such right theretoshall be deemed to have been waived.4034. N. Y. DEFENSE EMERGENCY ACr §§ 105, 106.35. See Cavness v. U. S., 187 F. 2d 719 (9th Cir. 1951), cert. denied, 341U. S. 951 (1951), where the court refused to order a new trial on the ground thata juror failed to reveal that he was a reserve police officer. See also Annots.,140 A. L. R. 1183 (1942). 38 A. L. R. 2d 624 (1954).36. N. Y. CODE CRIM. PROC. §8.37. REPORT OF COMMISSIONERS ON PRAcrIcr AND PLEADING (1849), p. 342,quoted in McKINNEY'S CONSOL. LAws OF N. Y., Book 66, pt. 2, p. 553; Petition ofProvoo, 17 F. R. D. 183,198, 203 (D.C. Md. 1955), aff'd, U. S. v. Provoo, 350 U. S.857 (1955).38. N. Y. CODE CRIM. PROC. §668: If a defendant, indicted for a crime whosetrial has not been postponed upon his application, be not brought to trial at thenext term of the court in which the indictment is triable, after it is found, thecourt may, on application of the defendant, order the indictment to be dismissed,unless good cause to the contrary be shown.39. 309 N. Y. 353, 130 N. E. 2d 891 (1955). The defendant, having pleadedguilty to two of five indictments, after serving six years of his sentence, wasreleased from prison. Upon his release, the district attorney had the defendantreturned for rearraignment on one of the three indictments which had not beentried and on subsequent trial the defendant was convicted. This conviction wasreversed on the ground that the indictment should be dismissed inasmuch as thedefendant was denied his right to a speedy trial.40. Pietch v. U. S., 110 F. 2d 817, 819 (10th Cir. 1940); State v. McTague,173 Minn. 153, 154, 155, 216 N. W. 787, 788 (1927).

Criminal Law—Jury

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Criminal Law—Jury

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