Sometimes a case reads like a movie script or a Grisham novel.  People v Wlasiuk ; 2011 NY Slip Op 09544 ; Decided on December 29, 2011 ; Appellate Division, Third Department  reads like one. In reading the case a thought flitted across our mind…could reversible error intentionlly be built in to a case?

 
"Defendant was convicted in 2003 of the crime of murder in the second degree in connection with the death of his wife (hereinafter the victim), whose body was found next to defendant’s submerged pick-up truck at the bottom of Guilford Lake. Defendant was present at the scene and, when the ensuing investigation both contradicted his version of the events and revealed evidence suggesting that he had killed the victim at their home and then staged a motor vehicle accident, police became suspicious. Upon defendant’s appeal from his judgment of conviction, this Court concluded that "the cumulative effect of a litany of errors deprived defendant of a fair trial" and, therefore, we reversed (People v Wlasiuk, 32 AD3d 674, 675 [2006], lv dismissed 7 NY3d 781 [2006]). Following remittal, County Court granted defendant’s motion for dismissal of the original indictment. "

On the second trial, a second reversal for ineffective assistance of counsel.  "We agree with defendant, however, that reversal is nonetheless required because he received ineffective assistance of counsel. Specifically, counsel — without a reasonable strategy — (1) failed to join in the prosecutor’s request that juror No. 5 be discharged for cause once it became clear that the juror had committed misconduct in obtaining his seat on the jury, and (2) introduced evidence that this Court previously held to be unduly prejudicial, inadmissible hearsay.

With respect to the juror, when the names of potential witnesses were read during jury selection, juror No. 5 indicated that he knew Joyce Worden — defendant’s paramour, who was also the baby-sitter for the couple’s young children — as a patient in his podiatric medical practice. He expressly denied knowing any other witnesses. Juror No. 5 further maintained that he could be fair despite his prior professional relationship with Worden. He stated that he did not "even know much about the [first] trial," because he had recently moved to the area and had been busy with his medical practice and child-rearing at the time. He was then sworn as a juror and excused for the day.

During the lunch recess that immediately followed, the lead police investigator in the case, Lieutenant James Lloyd, informed the People that juror No. 5 had been interviewed by police at the time of the victim’s death. The interview with Detective Gerald Parry — whose name was also read to juror No. 5 from the potential witness list and who ultimately testified at trial — was written up in the police lead sheet, which the People read into the record. The lead sheet indicated that juror No. 5 had informed police that he knew the victim, had worked with her at a hospital, had heard nurses discussing the victim’s "problem with her husband," and referred police to other hospital employees who had further information about defendant’s prior violent acts towards the victim. In response to this information, the People and County Court were indifferent regarding whether juror No. 5 should remain. Defense counsel, however, adamantly resisted the discharge of juror No. 5, stating:

"I’m not going to pick a jury and have [Lieutenant] Lloyd decide he doesn’t like somebody on the jury or he interviewed [*4]somebody . . . I don’t want [Lieutenant] Lloyd to find out who the jurors are and then decide that he’s not happy with one of them and come up with a reason to have that juror disqualified."

The next day, following completion of jury selection but before the jury was given preliminary instructions, defense counsel advised County Court that he had been contacted by Worden, who had been a witness for the defense during the first trial. Worden told counsel that juror No. 5 had a conflict inasmuch as, while treating her as a patient, he had asked her many questions about the case. Although defense counsel asserted that he liked jurors who asked questions and wanted juror No. 5 to remain on the jury, County Court became concerned that the juror had not been forthright during voir dire. In addition, the People expressed grave doubts about the fitness of juror No. 5, stating that "his calling the police and being involved in the investigation and his failing to disclose that [fact] . . . has demonstrated that he is highly unqualified . . . to be a juror in this particular matter." Essentially, the People requested that the juror be dismissed for cause — as grossly unqualified under CPL 270.35 (1) — and claimed that they would have exercised a peremptory challenge against the juror had this information come to light when peremptory challenges remained available.^[FN2]

During an in camera inquiry, juror No. 5 revealed that he had treated defendant’s children after the first trial, but had not mentioned the relationship because the children were not named on the witness list. Although the juror initially indicated that he did not recall speaking to police about the case, he eventually admitted that he had been interviewed by Parry after the court informed him that the police lead sheets described the interview. The juror stated, however, that he had no "real affiliation with" the victim and had no information for police. In addition, the juror denied asking Worden questions about the case, explaining that she started to discuss it with him, but he steered the conversation back to her medical condition. The juror then swore that he could remain fair and impartial, and County Court did not discharge him.^[FN3]

Defendant now argues that County Court committed reversible error in failing to dismiss juror No. 5 when it became clear that the juror was grossly unqualified under CPL 270.35 (1). Pursuant to that statute, "[a] sworn juror must be discharged when facts come to light, which were not known at the time the jury was empaneled, indicating that the juror is ‘grossly unqualified to serve’" (People v Harris, 99 NY2d 202, 212 [2002], quoting CPL 270.35 [1]). In determining whether the sworn juror is "grossly unqualified," the court must, "[i]n a probing and tactful inquiry, . . . evaluate the nature of what the juror has seen, heard, or has [*5]acquired knowledge of, and assess its importance and its bearing on the case" (People v Buford, 69 NY2d 290, 299 [1987]). This test is more stringent than that used in resolving a for-cause challenge. While, under CPL 270.20 (1) (b), a challenge for cause is permissible when a prospective juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial" (emphasis added), a sworn juror may be discharged as grossly unqualified over a defendant’s objection "only when it becomes obvious that [the] particular juror possesses a state of mind which would prevent the rendering of an impartial verdict" (People v Buford, 69 NY2d at 298 [internal quotation marks and citation omitted] [emphasis added]). "