When a trial attorney exercises a peremptory challenge, he or she generally expects for the excused juror's involvement in the case to end then and there. The reasoning goes that, if a prospective juror excused under a peremptory challenge reenters the jury pool as an possible alternate, the peremptory challenge would lose most (if not all) of its power. Strangely, attorneys trying a case in the County Court of Schenectady County took the presiding judge's suggestion to allow this precise scenario to unfold during jury selection---most likely because the case had exhausted the available pool of jurors. After both defendants were convicted at trial, the Third Department heard their appeals. In the case of co-defendant Carl Molano, the Third Department unanimously affirmed his conviction and addressed this jury selection issue. People v. Molano (3d Dept., 2/18/2010) (Mercure, J.P.) (5-0).
Before trial, attorneys for Molano and his co-defendant had exercised a number of peremptory challenges. Later in the jury selection process, the County Court suggested "that alternate jurors be selected from the list of those prospective jurors who had previously been excused by virtue of peremptory challenges." All parties agreed to the court's suggestion. Subsequently, one of the prospective jurors excused by defendants' peremptory challenge was selected as an alternate and later became a juror.
On appeal, the Third Department noted initially that "[a]lternates must be selected in the same manner as jurors." Thus, the court reasoned, prospective jurors must be excluded from service as alternates if initially excused by peremptory challenge. Since the County Court's suggestion as implemented was improper, the court went on to determine whether the error was properly challenged and preserved "by appropriate objection" or whether the error was "waived by [the defendants'] affirmative acts." Such a waiver is possible, because, as the court observed, "a defendant is ordinarily entitled to withdraw a peremptory challenge[.]" Noting that the defendants "did not object to the procedure and, indeed, agreed to it," the court concluded that defendants therefore waived any objection to the jury selection error and refused to disturb the judgment of the County Court. However, the court did caution that it "d[id] not approve of this method to select alternates, and County Court would do well to avoid it in the future." (JTR/LC)
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