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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 10 

The People &c.,

 Respondent,

 v.

Urselina King, 

 Appellant.

Kendra L. Hutchinson, for appellant.

Solomon Neubort, for respondent.

PIGOTT, J.:

Defendant was convicted, after a jury trial, of

burglary in the first degree (Penal Law § 140.30 [3]) and assault

in the second degree (Penal Law § 120.05 [2]) for events that

occurred on March 9, 2008. On that date, defendant and an

accomplice attacked the victim, ransacked her apartment and stole

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$300 from her purse. Defendant argues on this appeal that the

trial court committed a mode of proceedings error when it

discharged potential jurors on hardship grounds without

conducting a sufficient inquiry into the particular hardship, and

erred in precluding evidence of third-party culpability proffered

by the defense that, according to defendant, would have

demonstrated that other unidentified individuals had a motive to

attack the victim. Defendant further argues that she was

deprived of the effective assistance of counsel because trial

counsel failed to object to certain improper statements made by

the prosecutor during summation. 

I.

At trial, the victim testified that, at approximately

4:00 a.m. on March 9, 2008, she returned to her third-floor

apartment after work. While she was unlocking her apartment

door, a masked man and defendant (who was unmasked) appeared from

a nearby stairwell. Defendant was brandishing a knife. The

masked man struck the victim on the forehead with a gun, causing

her to fall to the floor. Defendant stepped on the victim's

stomach, grabbed the victim's keys and, along with the masked

man, dragged the victim into her apartment. While inside,

defendant cut the strap to the victim's purse, dumped the purse's

contents and stole money. Defendant alternated between striking

the victim and ransacking the apartment. At one point, defendant

asked the victim if she was "willing to die for Tone" -- a

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reference to Tony Mann, the victim's boyfriend and father of

defendant's two children. The victim was taken by ambulance to a

hospital, where she received treatment for cheek and nasal

fractures and other injuries to her face and head. Approximately

a week after the incident, the victim picked the defendant out of

a line-up and she was thereafter arrested. 

The case proceeded to trial. Prior to voir dire, the

court informed the panel that it expected the trial to last

approximately five days, and stated that it recognized that for

some of the prospective jurors five days may be a hardship

because of family obligations or business commitments. It stated

that if any of the prospective jurors had a hardship based on

family or business obligations, the court could excuse them from

the trial but not from jury duty, meaning that the excused

prospective jurors would be returned to the jury room where they

could be assigned to another case. The court asked those

prospective jurors who had such hardships to raise their hand and

directed them to the center aisle, at which point, the court

apprised them that "[t]he clerk will speak to you about your

hardship." 

After those prospective jurors exited the courtroom,

the court provided the remaining prospective jurors with a

general synopsis of the charges that were brought against

defendant, along with a general statement concerning the People's

allegations and the defendant's alibi defense. The court then

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asked the remaining prospective jurors if any of them did not

believe that they could be a fair and impartial juror. After

excusing a couple prospective jurors, the court began the process

of formal voir dire, which involved calling 16 names at random

from the remaining prospective jurors and directing them to the

jury box. Following questioning by the court and the attorneys,

a jury was empaneled and sworn in. 

The People thereafter presented their case, the theory

of which was that defendant, jealous at having been left by Mann

with whom she'd had two children, sought revenge against the

victim. In her defense, defendant called three alibi witnesses, 

all of whom testified that defendant had returned home at 1:00

a.m. the day of the incident and remained there. Defendant also

unsuccessfully sought to introduce third-party culpability

evidence indicating that two men who were upset with Mann over a

drug dispute, rather than defendant, had a motive for attacking

the victim and burglarizing her apartment. 

During summation, defense counsel attacked the

credibility of the People's witnesses, including the victim, and

steadfastly maintained that defendant's alibi defense had created

reasonable doubt. The prosecutor argued in his summation that

the case was about "jealousy" and "obsession" and "hell have

[sic] no fury as a woman's scorn [sic]." He posited that "[o]nly

a woman would inflict this kind of beating. Only a woman who is

trying to maim and disfigure her rival . . . would cause this

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kind of injury," and that "[t]his crime is a woman. That's why

she did it at [the victim's] house" by laying in wait on the

stairs and "toying with her rival."1 Defense counsel did not

object to any of these statements. 

The jury convicted defendant of burglary in the first

degree and assault in the second degree. Defendant was sentenced

to a concurrent term of nine years' imprisonment and five years'

post-release supervision on the burglary conviction, and seven

years' imprisonment and three years' post-release supervision on

the assault conviction. 

The Appellate Division affirmed in a 3-1 decision,

holding, as relevant here, that defendant failed to preserve her

contention that the trial court improperly discharged potential

jurors based upon hardship without first conducting a sufficient

inquiry, that the trial court correctly precluded as speculative

so-called third-party culpability evidence and that, although

certain of the prosecutor's summation statements improperly

included gender stereotyping, the comments did not deprive

defendant of a fair trial (110 AD3d 1005, 1006-1007 [2d Dept

2013]). The dissenting Justice would have reversed the judgment

and ordered a new trial in the interest of justice on the ground

1

 The prosecutor also called into question defendant's

alibi defense by claiming that the defendant made "a desperate

attempt" to provide alibi witnesses at the last minute, but the

trial court interjected that the defense had in fact served a

notice of alibi prior to trial, such that it was no surprise to

the prosecution when the alibi defense was presented at trial. 

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that the prosecution's summation comments improperly appealed to

gender bias and that certain comments that attacked defendant's

alibi defense as having been devised in the last minute were

unsupported by the record (see id. at 1007-1008 [Hinds-Radix, J.,

dissenting]). 

A Judge of this Court granted defendant leave to appeal

and we now affirm.

II.

Defendant first contends that the trial court abdicated

its judicial function by allowing prospective jurors to opt out

of serving on the jury due to a hardship and delegated that

function to the clerk and the prospective jurors. Defendant

acknowledges that trial counsel failed to object to the court's

procedure, so the issue presented is whether the court, assuming

that the procedure was error in the first place, committed a mode

of proceedings error that deprived defendant of her right to a

jury trial under the supervision of a judge.

This Court may reach unpreserved questions of law "in a

very narrow category of cases" where the errors "go to the

essential validity of the process and are so fundamental that the

entire trial is irreparably tainted" (People v Kelly, 5 NY3d 116,

119-120 [2005]; see People v Ahmed, 66 NY2d 307 [1985], rearg

denied 67 NY2d 647 [1986]). Errors contained in this "tightly

circumscribed class" do not require preservation (Kelly, 5 NY3d

at 120). We found such an error in Ahmed, where the trial judge

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absented himself and had delegated certain functions to the law

secretary during jury deliberations (see Ahmed, 66 NY2d at 310). 

We concluded that an issue of law was presented for our review,

notwithstanding the defendant's failure to timely object to the

procedure, because the trial judge's "failure . . . to retain

control of deliberations" implicated "the organization of the

court or the mode of proceedings prescribed by law" (id.

[citation omitted]). Upon reaching the merits, we held that the

actions of the trial judge, including his delegation of certain

responsibilities to his law secretary, "deprived defendant of his

right to a proper trial by jury" (id. at 311). 

Years later in People v Toliver (89 NY2d 843 [1996]),

we acknowledged that "[t]he presence of and supervision by a

Judge constitutes an integral component of the right to a jury

trial" (id. at 844, citing Ahmed, 66 NY2d at 311-312). In

Toliver, the trial judge absented himself from portions of the

actual voir dire examination of the jurors and questioning by the

attorneys. We held that this absence violated the defendant's

"fundamental right to have a Judge preside over and supervise the

voir dire proceedings while prospective jurors are being

questioned regarding their qualifications," and that the trial

judge's relinquishment of control over the proceedings or

delegation of the duty to supervise deprived defendant of his

right to a jury trial (Toliver, 89 NY2d at 844 [emphasis

supplied]). The trial judge's absence from actual voir dire

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constituted reversible error because "it is the Judge who is the

ultimate arbiter of a prospective juror's fitness to serve" (id.

at 845, citing CPL 270.20 [entitled, "Trial jury; challenge for

cause of an individual juror"]). 

Relying primarily on Ahmed and Toliver, defendant

asserts that she was deprived of her right to have a judge

"supervise" the process over which prospective jurors are excused

for purposes of hardship, such that no objection to the procedure

was required. We disagree. 

There are significant distinctions between this appeal

and Ahmed and Toliver. The mode of proceedings error in Ahmed

was the court's "failure . . . to retain control of

deliberations," which we held impacted the defendant's

constitutional right to a trial by jury (Ahmed, 66 NY2d at 310). 

Indeed, we later acknowledged that the procedure utilized by the

trial court in Ahmed constituted a "fundamental flaw[]" in the

proceedings that did not require an objection (People v Becoats,

17 NY3d 643, 651 [2011], cert denied 132 SCt 1970 [2012]). 

Toliver is easily distinguishable from the present case

because, first and foremost, it is not a mode of proceedings

case,2

 because defense counsel registered an objection to the

2

 In Toliver, defense counsel registered an objection on

the record to the fact that the trial judge had absented himself

while prospective jurors two through six were orally answering a

questionnaire, and also absented himself for all but the last

five minutes of the prosecutor's voir dire, calling it a

"delegation of judicial responsibility . . ." (212 AD2d 346,

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procedure employed by the trial judge. Moreover, we reversed in

Toliver on the ground that the trial judge's absence deprived the

defendant of his right to a jury trial because it is the trial

judge who makes the ultimate determination regarding a

prospective juror's fitness to serve (see Toliver, 89 NY2d at

845). 

Here, the questioning concerning the prospective

jurors' fitness to serve had not yet begun when the court brought

up the issue of hardship. The trial court's hardship questioning

occurred before formal voir dire (see CPL 270.15), and focused on

matters that were extraneous to their fitness to serve and might

have led to a prospective juror's inability to serve because of

work commitments and family obligations. To find otherwise, in

reliance on CPL 270.15, would be to conflate a prospective

juror's inability to serve because of hardship unrelated to

"fitness."3

347-348 [1st Dept 1995], revd 89 NY 843).

3

 In support of its contention that a procedure "similar"

to the trial court's procedure in this case has previously been

"struck down" as "improper" (dissenting op, at 9), the dissent

relies on People v Roblee (70 AD3d 225 [3d Dept 2009])--a case

where the defendant was charged with the assault of his

girlfriend. Roblee is distinguishable, however, because the

Appellate Division in that case concluded that the trial court's

blanket exclusion of prospective jurors who had been accused or

convicted of domestic violence, or any crime, deprived the

defendant of his right to have the jury "'selected at random from

a fair cross section of the community'" (id. at 228, quoting

Judiciary Law § 500). In addition, the defense attorney in

Roblee specifically objected to the court's procedure (see

Roblee, 70 AD3d at 229). Finally, the court's improper procedure

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CPL 270.15 expressly mandates that the trial court

direct that the names of at least twelve members of the panel be

drawn and called, at which time those members "shall take their

places in the jury box and shall be immediately sworn to answer

truthfully questions asked them relative to their qualifications

to serve as jurors in the action" (CPL 270.15 [1] [a]). We have

made it clear that once formal voir dire is commenced, the

defendant has a fundamental right to have it overseen by a judge

(see Toliver, 89 NY2d at 844). 

Contrary to the dissent's contention that the court's

procedure deviated from CPL 270.15 (1) (a) (dissenting op, at 8),

formal voir dire had not commenced in this case when the court

inquired of the prospective jurors as to whether they had any

hardship. The trial court simply asked the prospective jurors --

none of whom had their names drawn or were called to the jury box

-- if they believed that they would be unable to serve because of

a hardship. At that point, there had been no inquiry into

whether these particular prospective jurors were fit to serve as

fair and impartial jurors (see CPL 270.15 [1] [a], [b], [c]); CPL

270.20); rather, the only inquiry by the court was whether, given

the length of the trial, any particular hardship would prevent

them from serving. Thus, while a defendant possesses a

"fundamental right" to have a judge supervise formal voir dire to

in Roblee addressed the prospective jurors' fitness to serve (see

CPL 270.15), as opposed to hardship (see Roblee, 70 AD3d at 229-

230). 

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determine a prospective juror's fitness to serve (see Toliver, 89

NY2d at 844), a defendant does not possess a "fundamental right"

to have a judge oversee whether a prospective juror has issues in

his or her life that prevent them from sitting. This is

evidenced by the fact that both the trial judge and the

commissioner of jurors possess the authority to determine whether

"attendance for jury service in accordance with the summons would

cause undue hardship or extreme inconvenience" to the prospective

juror (Judiciary Law § 517 [c]; see 22 NYCRR 128.6-a [granting

the commissioner of jurors the discretion to excuse prospective

jurors from service and to grant postponements]). 

We have acknowledged in a related context that a trial

court's consideration of a prospective juror's request to be

excused, which is made before the commencement of formal voir

dire, is not a material stage of the trial proceedings and the

defendant's presence is therefore not required (see People v

Velasco, 77 NY2d 469, 473 [1991]). If a defendant's presence at

a trial court's questioning of a prospective juror to determine

hardship does not constitute a material stage of the trial, it

follows that the procedure employed by the trial court in this

instance did not affect the organization of the court or the mode

of proceedings prescribed by law. As such, defendant was

required to preserve her objection to the trial court's

procedure. 

Nor can it be said that the trial court "delegated" an

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exclusive judicial function to the clerk. Judiciary Law § 517

(c) grants to the commissioner of jurors or the court, in

deciding whether an application for excusal should be granted,

the authority to "consider whether the applicant has a mental or

physical condition that causes him or her to be incapable of

performing jury service or there is any other fact [which]

indicates that attendance for jury service in accordance with the

summons would cause undue hardship or extreme inconvenience to

the applicant . . ." 

Defendant's right to a trial by jury was not impaired

by this procedure. At most, the trial court failed to adhere to

a statutory procedural protection; it did not relieve defendant

of her obligation to object to the court's procedure (see Kelly,

5 NY3d at 120; see also People v Casanova, 62 AD3d 88, 92 [1st

Dept 2009], lv denied 12 NY3d 852 [2009] [holding that

pre-screening procedure for hardship did not fall within the mode

of proceedings error exception]). Preservation is particularly

important in a case like this because the defense, faced with the

prospect that certain prospective jurors were claiming that they

were unable to serve due to hardship, may very well have made a

strategic decision not to challenge the procedure because he did

not want to risk having those prospective jurors end up on the

jury when it became apparent that they did not wish to serve. If

defense counsel had an objection to the procedure employed by the

trial court, he should have voiced it so that the court could

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have corrected any alleged error. 

III.

Defendant's second contention is that the trial court

committed reversible error when it precluded her from introducing

evidence that she claimed demonstrated that people other than

defendant committed the crimes. She sought to introduce

testimony from a witness named "LeShay," who was expected to

testify that ten days prior to the burglary and assault, two men

approached her and LeShay. One of the men purportedly told them

that "Tone" had beat him up for "kilograms," and that it must

have been the victim who had "set him up to be robbed by Tone." 

After the People rested, defense counsel argued that he

intended to call LeShay, who would testify that the two men

approached defendant and LeShay and said, "look, Tony Mann stole

our narcotics, we can't get at Tony Mann because Tony Mann is in

jail, but we can get at you." The trial court refused to allow

the testimony, finding it to be hearsay, not probative and too

speculative to demonstrate that the two men were involved in the

attack. The Appellate Division affirmed on those grounds (110

AD3d at 1006). 

Before a trial court permits evidence that another

party committed the crime for which a defendant is on trial, "the

court must balance the probity of the evidence against the

prejudicial effect to the People" (People v Schulz, 4 NY3d 521,

528 [2005], citing People v Primo, 96 NY2d 351, 356 [2001]). The

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admission of such evidence "may not rest on mere suspicion or

surmise" (Primo, 96 NY2d at 357). Here, it cannot be said that

the trial court abused its discretion in not allowing the

proffered testimony. 

IV.

Defendant's final argument is that she was deprived of

the effective assistance of counsel because her trial counsel

failed to object to the prosecutor's comments on summation that

appealed to gender bias and denigrated defendant's alibi defense. 

"In order to sustain a claim of ineffective assistance of

counsel, New York courts must examine the trial as a whole to

determine whether defendant was afforded meaningful

representation" (Schulz, 4 NY3d at 530, citing People v

Benevento, 91 NY2d 708, 713 [1998]). "So long as the evidence,

the law and the circumstances of a particular case, viewed in

totality and as of the time of the representation, reveal that

the attorney provided meaningful representation, the

constitutional requirement will have been met" (People v Baldi,

54 NY2d 137, 147 [1981]). 

The Appellate Division majority and dissenting Justice

were in agreement that the prosecutor's remarks concerning

defendant's gender were patently improper, but these observations

were made in the context of defendant's (unpreserved) argument

that prosecutorial misconduct deprived her of a fair trial. The

dissenting Justice would have reached the issue in the interest

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of justice (110 AD3d at 1006-1008). Nonetheless, defendant

raised her ineffective assistance of counsel claim on direct

appeal, and we therefore review it here.

Addressing first defendant's contention that defense

counsel was ineffective by failing to object to the prosecutor's

alleged denigration of defendant's alibi defense, we note that

the court interrupted the prosecutor after he made the allegation

that certain defense witnesses had not come forward until the day

before. The court explained that defendant had served notice of

the alibi defense prior to trial and that the People were not

surprised when the alibi witnesses testified on defendant's

behalf. The court explained that defense counsel was not

required to mention the alibi witnesses during his opening, and

that defendant was not required to present any evidence at trial. 

The trial court's curative instruction -- which it gave on its

own volition -- alleviated any prejudice to defendant and

conveyed to the jury that alibi witnesses did not come forward at

the last minute. 

Turning to defendant's next contention, we conclude

that the prosecutor's appeal to defendant's gender was

inexcusable and irrelevant, particularly since jealousy and rage

are emotions shared by both genders. Statements such as "only a

woman would inflict this kind of beating," "[t]his crime is a

woman" and "hell hath no fury as a woman scorned" are simply

ridiculous comments since men are equally capable of committing

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crimes in a jealous rage. We therefore agree with defendant that

the remarks were inflammatory and were improper summation.4

 Our

decision should not be interpreted as countenancing such

summation remarks that appeal to gender stereotypes when

objections are raised, and trial courts should reprimand counsel

for making such remarks. 

That being said, defense counsel's failure to object

during summation did not amount to ineffective assistance of

counsel such that a new trial is required. The remarks by the

prosecutor were so over the top and ridiculous that defense

counsel may very well have made a strategic decision not to

object to the inflammatory comments out of a reasonable belief

that the jury would be alienated by the prosecutor's boorish

comments. Defense counsel presented an alibi defense, attacked

the credibility of the People's witnesses, sought to introduce

third-party culpability evidence (albeit unsuccessfully), and

pointed out the lack of forensic evidence tying defendant to the

crime. Thus, it cannot be said that defendant did not receive

meaningful representation. 

4 The overall thrust of the People's theory on summation --

that defendant was jealous of the victim's relationship with Tony

Mann and the crime was perpetrated by a jealous person (as

opposed to a stranger, which was the defense's theory) -- was

entirely proper in light of the People's evidence. That evidence

was that defendant had harassed the victim over the telephone for

several months, and that seven months before the incident at

issue on this appeal, defendant physically attacked the victim

because of the victim's relationship with Mann. 

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Accordingly, the order of the Appellate Division should

be affirmed. 

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People v Urselina King

No. 10 

RIVERA, J.(dissenting):

I agree with the majority that defendant's third-party

culpability claim is without merit. However, I would reverse the

Appellate Division on the grounds that the jury selection process

employed by the judge violated the defendant's right to a trial

by jury, and defendant was denied a fair trial due to her defense

counsel's failure to object to the prosecution's inflammatory,

irrelevant, and prejudicial gender-based summation comments. 

Therefore, I dissent. 

I. IMPROPER DELEGATION OF A JUDICIAL FUNCTION

Defendant challenges the trial judge's jury selection

procedure of permitting prospective jurors to self-excuse from

jury service on hardship grounds. On the threshold preservation

question, defendant claims that counsel's failure to object is no

bar to our review of her claim because the challenged procedure

excluded the judge from an integral part of the defendant's

criminal trial, in violation of her constitutional right to trial

by jury, and therefore constitutes a mode of proceeding error. 

These arguments find support in our case law and applicable

statutes.

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A mode of proceedings error is one that "affects 'the

organization of the court or the mode of proceedings pr[e]scribed

by law'" (People v Walston, 23 NY3d 986, 991 [2014], quoting

People v Patterson, 39 NY2d 288, 295 [1976]). It is "a 'very

narrow exception' to the rule that errors made by a trial court

may not be raised on appeal unless they are preserved at trial by

timely objection" (id.) and is "reserved for the most fundamental

flaws" (People v Becoats, 17 NY3d 643, 651 [2011]). A judge's

delegation of judicial oversight of a criminal trial may impact a

defendant's constitutional rights and thus fall within the narrow

exception to our preservation rule (People v Ahmed, 66 NY2d 307,

310 [1985]).

This Court has made abundantly clear that "[t]he presence of

and supervision by a Judge constitutes an integral component of

the right to a jury trial" (People v Toliver, 89 NY2d 843, 844

[1996], citing Ahmed, 66 NY2d at 311-312; People v Torres, 72

NY2d 1007, 1008-1009 [1996]). 

"Since the selection of the jury is part of

the criminal trial . . . a defendant has a

fundamental right to have a Judge preside

over and supervise the voir dire proceedings

while prospective jurors are being questioned

regarding their qualifications. A Judge who

relinquishes control over the proceedings or

delegates the duty to supervise deprives a

defendant of the right to a trial by jury,

requiring reversal" 

(Toliver, 89 NY2d at 844 [internal citations omitted], citing

People v Velasco, 77 NY2d 469, 472 [1991]; People v Mullen, 44

NY2d 1, 4 [1978]). Moreover, general questioning that leads to

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"the determination that a prospective juror [i]s disqualified

before voir dire [i]s a matter for the court" (Velasco, 77 NY2d

at 473). Based on these cases, in accordance with our

recognition of the "constitutional guarantee of trial by jury"

(Ahmed, 66 NY2d at 310) and a defendant's fundamental right to

judicial oversight of jury selection, a judge's failure to

supervise questioning of prospective jurors regarding lawful

hardship grounds for exclusion from the petit jury, such as

occurred here, constitutes a mode of proceedings error that is

reviewable by this Court, notwithstanding counsel's failure to

object.

The majority concludes otherwise because, according to my

colleagues, the defendant's right to a trial by jury was not

impaired by the procedure complained of since the hardship

question posed by the judge preceded questioning regarding the

jurors' fitness to serve and formal voir dire (maj opn at 10). 

The distinction drawn by the majority is meaningless and contrary

to prior case law, which establishes that the duty to control

jury selection attaches before the commencement of voir dire and

includes determinations about the ability to serve (Velasco, 77

NY2d at 473 [1991] ["determination that a prospective juror was

disqualified before voir dire was a matter for the court"];

People v Stiggins, 1 NY3d 529, 530 [2003] [prosecutor's

assistance to the judge throughout the jury selection, including

prior to voir dire, "resulted in the judge 'relinquish(ing)

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control' over the jury selection process"] [modification in the

original]). 

Regardless of whether the issue before the court is a

prospective juror's "fitness to serve" or a hardship excuse, and

whether the questions are posed before or during voir dire, what

matters is whether the judge is absented from questioning

designed to lead to the judge's determination of whether a

prospective juror should be relieved from service on defendant's

jury. A judge's failure to supervise such questioning impacts a

defendant's right to a jury trial, and, as such, implicates the

mode of proceedings prescribed by law.

By way of example we need only consider a comparison of the

procedure followed here to that in People v Velasco. In Velasco,

after the jury panel was sworn en masse, the judge asked general

questions of the prospective jurors "designed to search out

matters which might lead to disqualification, including physical

impairments, family obligations, and work commitments" (77 NY2d

at 472-473). The judge then allowed those prospective jurors

wishing to respond to approach the bench and discuss the matter

with the judge, in the presence of the prosecutor and defense

counsel. This Court acknowledged the propriety of this process

and the trial court's ultimate decision-making role in jury

selection (id. at 473). As the Court has since noted, Velasco

involved questions "relating only to the qualifications of jurors

in the general sense--questions concerning such matters as

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physical impairments, family obligations, and work commitments"

(People v Sloan, 79 NY2d 386, 392 [1992]). Upon consideration of

those questions, the Velasco Court "pointed out that the

decisions of whether to excuse jurors on the grounds explored by

such pre-voir dire screening were matters solely for the court"

(id. at 392; Velasco, 77 NY2d at 473).

The procedure adopted by the Court in defendant's case is

dissimilar to that followed in Velasco in significant, and, for

purposes of our review of defendant's appeal, ultimately

determinative ways. As the record establishes, the judge began

the jury selection process by telling the prospective jurors the

name of the case and describing jury selection as a process by

which the judge and attorneys ask questions of prospective

jurors. The judge stated that "to begin this process of asking

you questions and getting truthful answers from you the law

requires that you swear or affirm to answer those questions

truthfully." The clerk then swore in the prospective jurors. 

The judge continued, introduced the attorneys and counsel, and

asked if any prospective jurors knew them. In discussing the

expected length of the trial, the judge broached the matter of

potential excusal from service. He said that he knew the

prospective jurors' participation in the trial was a sacrifice,

and that for some it "may be a hardship" because of "family

obligations" or "business commitments," and that he could excuse

individual jurors from participation in defendant's trial on

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those hardship grounds. He then asked those prospective jurors

who believed that jury service would be a hardship to identify

themselves by raising their hands. The judge directed those with

their hands raised to leave the courtroom and step outside into

the hallway where "the clerk will speak to you about your

hardship." From the record it is clear that some prospective

jurors raised their hands, went outside, and did not return for

further questioning regarding their potential service on the

petit jury.

Thus, rather than discussing with these prospective jurors

the nature of their claimed hardship--as in Velasco--the judge

permitted off-the-record conversations with a clerk about the

basis for hardship excuses, outside of the judge's presence and

without counsels' participation. Yet, as our cases establish, a

judge is solely responsible for supervision of jury selection and

may not delegate individual juror qualification determinations

(see Toliver, 89 NY2d at 844; Sloan, 79 NY2d at 392; Velasco, 77

NY2d at 473).

Moreover, under the Judiciary Law and the implementing

regulations, a judge is statutorily obligated to make

individualized hardship assessments and cannot grant a

prospective juror's application to be excused without giving some

consideration to the juror's reasons for the request. Judiciary

Law § 517 provides that a judge may exercise discretion to excuse

a juror from service. In determining whether to grant excusal

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from jury service on hardship grounds, a judge "shall consider

whether . . . there is any other fact which indicates that

attendance for jury service in accordance with the summons would

cause undue hardship or extreme inconvenience to the applicant, a

person under his or her care or supervision, or the public," and

shall be guided by standards promulgated by the Chief

Administrator of the Courts (Judiciary Law § 517 [c]). Those

standards provide a nonexhaustive, suggested list of categories

of permissible excuses, such as service as a caregiver, financial

hardship, and matters of conscious (22 NYCRR § 128.6-a [II] [B]). 

These categories by their nature require some inquiry from the

judge as to the underlying facts of the applicant's request. 

Thus, by the plain language of the Judiciary Law and the

administrative regulatory standards, a determination to grant a

hardship excuse requires judicial exercise of discretion based on

consideration of the individual prospective juror's

circumstances.

The majority misconstrues Judiciary Law § 517 in support of

its erroneous conclusion that the judge did not delegate an

exclusive judicial function to a clerk (maj opn at 11). Under

the majority's analysis defendant does not have a fundamental

right to judicial oversight of hardship determinations because

the law permits a trial judge as well as the commissioner of

jurors to grant requests to be excused from jury service for

hardship (maj opn at 10-11). This ignores the simple fact that

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once the prospective jurors are brought before the judge, it is

the judge who decides the application for a hardship excuse from

service in defendant's trial specifically (CPL 270.15 [1] [a];

Velasco, 77 NY2d at 473). As the record establishes, the judge

in defendant's case understood this was the nature of his

authority as he alerted the prospective jurors that he was able

to excuse them "from this trial." In exercising that authority,

the judge would necessarily base the hardship determination on a

prospective juror's personal situation, which could be affected

by factors relevant to the particulars of defendant's case, such

as the expected length of the trial. Nothing in the law suggests

that the commissioner has authority to supplant or supercede the

judge's determination, or that the judge's decision is any less

"a matter for the court." 

The procedure followed in defendant's case also deviated

from the procedure set forth in CPL 270.15 (1) (a), which

concerns the examination of prospective jurors. Under that

provision, no less than 12 persons shall be seated in the jury

box and "immediately sworn to answer truthfully questions asked

them relative to their qualifications to serve as jurors in the

action." Here, the judge swore in the prospective jurors before

seating any person in the jury box. Moreover, CPL 270.15 (1) (a)

requires that the judge make inquiries of the seated jurors about

any fact relevant to their prospective jury service, and permits

the judge to use a questionnaire to gather information for this

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purpose. The questionnaire responses are also provided to each

attorney. Counsel thereafter has the opportunity to examine the

prospective jurors. Thus, in accordance with this procedure,

once the judge swears in a prospective juror, the judge makes

general inquiries, followed by more specific questions as

necessary, counsel has access to that information, there may be

questioning by counsel, and then the court makes the final

determination about the prospective juror's ability to serve on a

defendant's jury. It may well be that the judge accepts the

juror's hardship ground, but a blanket hardship excuse without

judicial consideration is not provided for by our laws.

Indeed, the Third Department in People v Roblee (70 AD3d

225, 229 [3d Dept 2009]) struck down as improper a pre-voir dire

selection procedure similar to that adopted in defendant's case. 

In Roblee, the court asked a group of prospective jurors to raise

their hands if one of a number of disqualifying conditions

applied to them: they had a serious health issue; knew the

defendant, defense counsel, District Attorney, or Assistant

District Attorneys involved in the case; if they, or a close

friend or relative had been accused, convicted, or the victim of

domestic violence or any other crime; or if they had immediate

reasons, personal or business, which would keep them from serving

as jurors. The court informed the prospective jurors that it and

the parties would speak with anyone who raised their hands, but

the court first asked those who had identified themselves to step

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aside, with the provision that they would be called back if they

were needed. However, voir dire was concluded without recalling

or speaking further with those prospective jurors (id.). As the

Third Department noted, "[t]he proper practice would be for the

court to immediately follow up with those potential jurors to

identify their specific problems and determine whether those

individuals should remain in the pool or be excused" (id., citing

People v Henderson, 45 AD3d 903, 904 [2007]; People v Gayle, 238

AD2d 133, 133-134 [1997], lv denied 90 NY2d 893 [1997]; Judiciary

Law § 518).

As we have previously held, the fact that counsel may have

consented, either affirmatively or by failing to object, does not

constitute a waiver of the instant challenge to the judge's

procedure. Instead, to effectuate a valid waiver of the right to

a trial by jury, a defendant must sign a written waiver "in

person in open court in the presence of the court, and with the

approval of the court" as required by CPL 320.10 (2) (Ahmed, 66

NY2d at 311 [internal quotation marks omitted], citing CPL 320.10

[2]).

In addition to constituting a violation of the defendant's

constitutional right to trial, the judge's practice resulted in a

jury constituted in violation of this State's policy that "all

litigants in the courts of this state entitled to trial by jury

shall have the right to grand and petit juries selected at random

from a fair cross-section of the community ... and that all

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eligible citizens ... shall have an obligation to serve when

summoned for that purpose, unless excused" (Judiciary Law § 500). 

Even if service seems unjust because of the sacrifice involved

"it is necessary as long as we are to persist in our cherished

belief that an accused felon is entitled to be tried by a jury of

. . . peers" (People v Michael, 48 NY2d 1, 10 [1979]). The

United States Supreme Court likewise has recognized that "[j]ury

service is a duty as well as a privilege of citizenship; it is a

duty that cannot be shirked on a plea of inconvenience" (Thiel v

S. Pac. Co., 328 US 217, 224 [1946]).

Under the circumstances presented in defendant's case, I

would find that the judge committed a mode of proceedings error

when he abdicated his role in supervising the questioning that

would serve as the basis for a determination on whether any of

the prospective jurors should be excused on the grounds of

hardship. Whereas in Velasco the judge was in control of the

pre-voir dire screening and relied on the responses solicited

during that procedure to make a judicial determination on the

individual prospective jurors' ability to serve, here the judge

wholly relinquished his supervisory role to a clerk after

inviting prospective jurors to assess the existence of a personal

hardship warranting excusal from service on defendant's jury.

That procedure is impermissible and violated the defendant's

right to a jury trial. Harmless error analysis is inapplicable

(People v Anderson, 70 NY2d 729, 730-731 [1987]; Hildreth v City

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of Troy, 101 NY 234, 239), and the violation requires reversal.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant's additional claim that she was denied a fair

trial because defense counsel was ineffective for failing to

object to various inflammatory gender-based comments during the

prosecutor's summation provides an alternative ground for

reversal. While not every offensive comment or out-of-bounds

remark by a prosecutor on summation, gone unchallenged, will

serve to elevate defense counsel's misstep to an error of

constitutional proportion, counsel's silence in defendant's case

during the prosecutor's summation permitted statements to the

jury that were deeply prejudicial to the defense. The record

establishes that in his closing statement the prosecutor relied

on gender stereotypes intended to undermine the defendant's case

by denigrating the defendant and women as a class, and 

simultaneously sought to shore up the credibility of the People's

sole witness. No defense strategy could be furthered by the

prosecutor's remarks, and therefore defense counsel was

ineffective for failing to object.

Under the State standard for ineffective assistance of

counsel, in reviewing the representation provided to defendant,

the Court must look to counsel's performance in its totality (see

People v Baldi, 54 NY2d 137, 147 [1981]), to determine whether

defendant received meaningful representation (see People v

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Benevento, 91 NY2d 708, 712 [1998]). Under the more exacting

federal standard, the defendant must establish that counsel's

assistance was deficient and that the errors were prejudicial, in

that they were "so serious as to deprive the defendant of a fair

trial" (Strickland v Washington, 466 US 668, 687 [1984]). A

claim of ineffectiveness based on 

"[d]efense counsel's inaction in the face of

prosecutorial misconduct made during closing

argument is subject to the same 'meaningful

representation' standard applicable to other

trial errors. Under that standard, where

defense counsel fails to object when faced

with a pattern of prosecutorial misstatements

far afield from acceptable argument, such as

statements that misrepresent evidence central

to the determination of guilt, and where

there is no apparent strategic explanation

for defense counsel's silence, defendant has

been deprived of meaningful representation

and the constitutional right to a fair trial"

(People v Wright, 25 NY3d 769, 780 [2015]; see also People v

Fisher, 18 NY3d 964, 967 [2012] ["defense counsel's failure to

object to any, let alone all, of the prosecutor's egregiously

improper departures during summation, particularly in the highly

charged, potentially outcome determinative context in which they

occurred, deprived defendant of the right to effective assistance

of counsel"]). 

The majority concludes that "the prosecutor's appeal to

defendant's gender [is] inexcusable and irrelevant," the

statements about the gendered nature of the crime and the

perpetrator "are simply ridiculous comments," and the

prosecutor's "remarks were inflammatory and were improper

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summation" (maj opn at 16). The majority further states that its

"decision should not be interpreted as countenancing such

summation remarks," and that trial courts "should reprimand

counsel for making such remarks" (maj opn at 16). I agree, and

find unfathomable the majority's conclusion that counsel was not

ineffective for failing to object to these obviously

"inflammatory," "irrelevant," and "ridiculous" comments, that in

the future will subject counsel to judicial reprimand. The sole

basis for the majority's conclusion is its speculation that

defense counsel may have reasonably believed the prosecutor's

remarks would alienate the jury, and counsel's silence was a

strategic choice (maj opn at 16). That conclusion is not

plausible given the history of sex discrimination in the justice

system, as well as the nature of the summation comments presented

in this appeal and their impact on the defense and the People's

case.

As a starting point, certain foundational matters should

guide this Court's analysis of defendant's claim. Foremost is

the fact that "our Nation has had a long and unfortunate history

of sex discrimination" (Frontiero v Richardson, 411 US 677, 685

[1973]), and that inequality based on gender was often legally

sanctioned (see e.g. Nevada Dept. of Human Resources v Hibbs, 538

US 721, 729 [2003] ["The history of the many state laws limiting

women's employment opportunities is chronicled in--and, until

relatively recently, was sanctioned by--this Court's own

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opinions"]; United States v Virginia, 518 US 515, 531 [1996]

["Through a century plus three decades and more of that history,

women did not count among voters composing 'We the People'; not

until 1920 did women gain a constitutional right to the

franchise. And for a half century thereafter, it remained the

prevailing doctrine that government, both federal and state,

could withhold from women opportunities accorded men so long as

any 'basis in reason' could be conceived for the

discrimination."] [internal citations omitted]; Martha Chamallas,

The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa.

Law Rev. 463, 463 nn 1, 2 [historically, only men could sue for

loss of consortium or loss of a child's services]). 

Over time society's appreciation of this history and its

impact on society and individuals has only deepened. The

enduring role of gender stereotypes and bias reminds us that it

is not so easy to ignore over a century of discrimination. We do

not simply wake up one morning to find, as if by magic, that our

communities are gender bias-free, and that individuals and the

collective population have been able to cleanse the taint of

discrimination. Rather, gendered perceptions of women's roles

and abilities continue to plague workplaces, homes, and our

justice system (see e.g. Burlington N. and Santa Fe Ry. Co. v

White, 548 US 53, 70 [2006] [reassignment of plaintiff to lessdesirable job duties and 37 days of suspension without pay

sufficed to support a claim for retaliation under Title VII for

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plaintiff's reporting of her supervisor's derogatory gender-based

comments]; Back v Hastings On Hudson Union Free School Dist., 365

F3d 107, 120 [2d Cir 2004] ["stereotyping in the view that a

woman cannot 'be a good mother' and have a job that requires long

hours, or in the statement that a mother who received tenure

'would not show the same level of commitment [she] had shown

because [she] had little ones at home,' could establish gender

discrimination under the Equal Protection Clause]; Hibbs, 538 US

at 736 ["Stereotypes about women's domestic roles are reinforced

by parallel stereotypes presuming a lack of domestic

responsibilities for men. Because employers continued to regard

the family as the woman's domain, they often denied men similar

accommodations or discouraged them from taking leave."]; see also

ABA Presidential Task Force on Gender Equity and the Commission

on Women in the Profession, Closing the Gap: A Road Map for

Achieving Gender Pay Equity in Law Firm Partner Compensation

[2013]; Ronit Dinovitzer, Nancy Reichman, and Joyce Sterling, The

Differential Valuation of Women's Work: A New Look at the Gender

Gap in Lawyers' Incomes, 88 Social Forces 819 [2009]; Molly

McDonough, Damaging Disrespect: Minorities and Women Still

Experience Bias in the Justice System, Though It Isn't Always

Obvious, 89 ABA Journal 56 [2003]; The Honorable Dorothy W.

Nelson, Introduction to the Effects of Gender in the Federal

Courts: the Final Report of the Ninth Circuit Gender Bias Task

Force, 67 S. Cal. Law Rev. 731 [1994]). 

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In recognition of the continued presence of sex

discrimination in our society, our courts have sought to address

inequality in the justice system by addressing gender stereotypes

in the courtroom (see e.g. J.E.B. v Alabama ex rel. T.B., 511 US

127, 129 [1994] [declaring that peremptory challenges based on

"gender, like race, is an unconstitutional proxy for juror

competence and impartiality"]; New York State Judicial Committee

on Women in the Courts, Women in the Courts: A Work in Progress

[April 2002]; National Judicial Education Program, Gender

Fairness in the Courts: Action in the New Millennium [Nov. 1,

2001]). Those efforts are part of the broader commitment to

create courtrooms free of discrimination and bias, and a legal

system based on just treatment. 

Thus, to ensure a defendant's trial is fair and that

prejudice does not affect the outcome, a prosecutor may not rely

on stereotypes as part of the People's case. As a general

matter, courts have recognized a prosecutor's summation that

"appeal[s] to prejudice and passion . . . violates every basic

concept of fair trial" (People v Hearns, 18 AD2d 922, 923 [2d

Dept 1963] [prosecutor's summation which emphasized that

defendant and two key witnesses were of the same race was

impermissible]). Reliance on impermissible characteristics,

"impermissibly alter[s] the jurors' view of both the [defendant]

and the issues" (Glenn v Bartlette, 1996 WL 648679, *9 [NDNY Oct.

31, 1996] [prosecutor's introduction of race to the proceedings

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in combination with other violations necessitated the grant of

habeas corpus and a new trial], affd sub nom. Glenn v Bartlett,

98 F3d 721 [2d Cir 1996]).

While our courts have had occasion to comment specifically

on references to race and sexuality in the courtroom, the

concerns that underlie those cases are no less applicable to a

prosecutor's deployment of stereotypes about women. Thus,

judicial considerations of the propriety of those comments,

particularly those contained in prosecutor summations, should

guide analysis of defendant's case. As those cases instruct,

summation grounded in offensive and biased argument "creates the

grave danger that jurors will be distracted from evaluating a

case strictly on the basis of the evidence presented and will

instead approach the evidence from the point of view of biases

triggered by racially influenced fears or prejudices" (People v

Rivera, 136 AD2d 520, 521 [1st Dept 1988], affd, 73 NY2d 941

[1989]). There is no place in a trial for remarks that attempt

to make a connection between defendant's group association and

certain criminal activities because those comments "appeal to the

fears and prejudices of the jury . . . and [are] designed to

sidetrack the issue way from defendant's guilt or innocence"

(People v De Vito, 21 AD3d 696, 700 [3d Dept 2005]). Thus, an

appeal to the jury based on stereotyping "can serve no purpose

other than to arouse racially prejudiced attitudes and to

undermine the jury's dispassionate and objective consideration of

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the evidence adduced at trial" (People v Thomas, 129 AD2d 596,

597 [2d Dept 1987]). As such, argument based on stereotype is

divisive and "offends the democratic and logical principle that

race, creed or nationality, in themselves, provide no reason for

believing or disbelieving a witness' testimony" (Hearns, 18 AD2d

at 923; see also McFarland v Smith, 611 F2d 414, 416-417 [2d Cir

1979] ["(t)o raise the issue of race is to draw the jury's

attention to a characteristic that the Constitution generally

commands us to ignore. Even a reference that is not derogatory

may carry impermissible connotations, or may trigger prejudiced

responses in the listeners that the speaker might neither have

predicted nor intended"]).

Defendant claims that a competent attorney would have

realized that the prosecutor's comments were objectionable and

detrimental to the defendant, given the gendered nature of the

remarks and their prejudicial impact on her defense. Defendant

asserts that her attorney should have objected to the

prosecutor's statements that the case was "about jealousy, it's

about rage, it's about obsession. . . . It's about hell have

[sic] no fury as a woman's scorn [sic]," that "[o]nly a woman

would inflict this kind of beating. Only a woman who is trying as

hard as she can to maim and disfigure her rival and to have an

avenue for her rage and her jealousy would cause this kind of

injury." She further complains that counsel failed to stop the

prosecutor from arguing that it was significant that the attack

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took place in the complainant's apartment because "[i]t's a good

location for a woman trying to take out her shame and rage and

her jealousy on the face of her rival."

The prosecutor's assertions that only a woman could inflict

the type of harm evidenced in this case, and that the injury

could only be caused by a woman trying to disfigure her rival,

were statements grounded in unfounded gender stereotypes which,

as the majority concedes, were improper summation (maj opn at

16). As the record establishes, the prosecutor exhorted the

jurors to rely on gender stereotypes of vengeful spurned women

and argued without any record evidence that the crimes could only

be committed by a woman, but not just any woman. The prosecutor

claimed that the crime had to have been committed by a particular

type of woman, namely a scorned woman who would do anything

against another who was romantically involved with her man. Of

course, these stereotypes have no grounding in fact and certainly

not in any evidence placed before the jury during the trial. As

the majority acknowledges, these types of remarks are

"inflammatory" and "simply ridiculous" (maj opn at 16). 

However, the comments are impermissible not solely because

they are offensive, but because they associate particular

criminal conduct with a defining group characteristic specific to

defendant, namely her gender. Courts have rejected affinity

group classifications because of their potential impact on the

ultimate determination of guilt (United States v Rodriguez

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Cortes, 949 F2d 532, 541-542 [1st Cir 1991] [error to admit

identification care showing defendant to be Colombian as "the

effect . . . was to allow the jury to determine guilt based on

(defendant's) supposed nationality"]; United States v Doe, 903

F2d 16, 21-22 [DC Cir 1990] ["It is much too late in the day to

treat lightly the risk that racial bias may influence a jury's

verdict in a criminal case."]; Carter v Rafferty, 621 F Supp 533,

546 [DNJ 1985] ["The prosecutor, . . . without basis in the

record, imputed the 'powerful motive of revenge' on the entire

black community, and thus on the petitioners. This despite the

absence of any evidence of either petitioner having such racial

hatred."], affd in part, appeal dismissed in part, 826 F2d 1299

[3d Cir 1987]).

Moreover, because defendant presented an alibi defense, the

case came down to a credibility determination, requiring the jury

to decide whether to believe the complainant or defendant. Thus

the prosecutor's comments that sought to paint defendant as a

violent harpy and the complainant as a vulnerable and stalked

woman, were designed to make defendant appear less believable

while also enhancing the complainant's credibility. One of the

most difficult stereotypes to unsettle is that of the weak,

desperate, needy, helpless woman. Part of the prosecutor's

summation relied on that stereotype to make the complainant

sympathetic and more credible to the jury. The prosecutor asked

the jury to 

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"[i]magine what [the victim] must have felt

the first time she looked at herself in the

hospital mirror. Every one of those blows,

with the exception of her hand, where she got

stepped on and her stomach, where she was

stood on, before she got dragged inside the

apartment, to her face, her hair, her head.

This crime is a woman [sic]." 

The prosecutor contrasted the complainant's weak position to that

of the defendant who the prosecutor argued 

"wants to wait until [the complainant] has no

escape. She can almost get inside the

apartment. She can almost get down the

stairs. . . . She is trapped in this tiny

little landing with the keys in the door. No

where to run. That's the kind of fear

[defendant] was trying to put in [the

complainant's] heart."

Use of gendered stereotypes to enhance the credibility of a

witness is impermissible (Rivera, 136 AD2d at 521; Hearns, 18

AD2d at 923; McFarland v Smith, 611 F2D 414, 419 [2d Cir 1979]

["The credibility of the state's witness[] should depend on an

assessment of many pertinent factors, but the state should not be

entitled to have its witness's credibility enhanced simply

because they are not members of a group that might be prejudiced

against the defendant."]). All the more so where the case turns

on the credibility of the sole witness (People v Robinson, 17

NY3d 868, 870 [2011]).

No defense strategy explains allowing without objection this

double harm to the defense, not even the strategy identified by

the majority, namely that the prosecutor's comments were so

offensive that they would alienate the jury (maj opn 16-17). 

This would have been a nonsensical response to the summation

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because it allowed the prosecutor to draw from the well of

gendered images of women as both vengeful and vulnerable,

predator and prey. Moreover, assuming, as the majority does,

that the jury might be offended by the prosecutor's comments,

that does not mean defendant would gain a tactical advantage. 

Defendant and the complainant are both women and the jury could

just as well have viewed both as mistreated by the prosecutor,

allowing the People to draw on the jury's sympathies for the

complainant. Thus, whether the jury embraced the stereotypes or

rejected them outright, there was a potential upside to be gained

for the prosecutor's case, and no disadvantage to objecting.

There is yet another reason to reject the argument that

defense counsel made a strategic choice not to challenge the

prosecutor's remarks. If the jury was repulsed by the

prosecutor's characterizations of women, then by his silence

defense counsel risked the appearance that he condoned the

remarks, possibly drawing the ire of the jurors. If, instead, he

stood up for his female client, he would be viewed no worse by

the jury, and perhaps considered more favorably. Therefore,

contrary to the majority's opinion, objecting was the only proper

defense strategy because it would have avoided any negative

perceptions of the defendant and her defense counsel and

potentially enhanced counsel's standing in the eyes of the

jurors.

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* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Pigott. Judges Abdus-Salaam,

Stein and Fahey concur. Judge Rivera dissents in an opinion. 

Chief Judge DiFiore and Judge Garcia took no part.

Decided March 29, 2016

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