Senate Bill S7695

                                 
BILL NUMBER: S7695

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to alter-
nate jurors

This is one in a series of measures being introduced at the request of

the Acting Chief Administrative Judge upon the recommendation of her
Advisory Committee on Civil Practice.

This measure would amend CPLR 4106 in relation to use of alternate
jurors.

Selection of one or more alternate jurors at the request of a party and
with the consent of the court is authorized by CPLR 4106. This provides
an invaluable mechanism for continuing a trial and avoiding declaration
of a mistrial when, during the trial, a juror is unable to continue to
serve because of some physical or mental disability or evinces a bias or
prejudice against one of the parties.

In 2013 (effective January 1, 2014), upon recommendation of the Advisory
              

Committee, CPLR 4106 was revised to permit a court, without first secur-
ing the permission of the parties, to seat an alternate juror after a
case has been submitted to the jury and deliberations have begun, and to
permit that juror to participate in deliberations if a regular juror has
become unable to perform the duties of a juror. However, when an alter-
nate is seated during deliberations, CPLR 4106 is silent as to whether
the jury shall then continue to deliberate from the point where the
alternate is seated, or must start deliberations over, from the begin-
ning, even reconsidering issues that had been resolved by the original
jurors.

This measure would amend CPLR 4106 to provide a direction that when an
alternate juror is seated after deliberations have begun, the reconsti-
tuted jury shall begin deliberations over again on all issues that were
presented to the jury when the case was submitted to them.

No appellate courts have addressed this matter in New York. In Gallegos
v. Elite Model Management Corporation, 28 A.D.3d 50 (1St Dep't, 2005),
during deliberations in the damages trial of a bifurcated case, the
trial judge seated two alternate jurors with this instruction to the
newly constituted jury: "You are going to start deliberations from
scratch...  it is as if you were starting from the very beginning." On
appeal, however, the damages verdict was reversed because, absent
consent by defense counsel, the substitution of alternate jurors was
improper.

We believe that when an alternate juror has been seated during deliber-
ations, the court should instruct the newly constituted jury that it
must start over and deliberate on all of the issues that were submitted
to it when the deliberations began. Even though this procedure may
prolong the length of deliberations, its virtues are several: the
original jurors will now have the benefit of input from the newly
substituted juror on all issues; the substituted juror will hear the
positions previously advanced by those jurors. Those positions may now
change. After a verdict is announced and a request is made to poll the
jury, all six members of the reconstituted jury will be able to honestly
state that it was, or was not, their verdict. The parties will have the
assurance that all six jurors in the jury box, including the substituted
juror, participated in the deliberations leading to the verdict.

We recognize that where trial has been bifurcated and a verdict has
already been recorded in the liability phase, when an alternate is seat-
ed in the damages phase, the newly constituted jury should be instructed
to begin again only with regard to the issues raise in the damages
phase.

We also recommend that the Pattern Jury Instruction Committee consider
an amendment to PJI 1.13A to reflect these proposals.  This measure
would take effect immediately and apply to all actions pending on or
after such effective date.

 
LEGISLATIVE HISTORY:

2023-2024: OCA 65