SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

675 

CA 08-01301 

PRESENT: SMITH, J.P., FAHEY, CARNI, AND MARTOCHE, JJ. 

 

IN THE MATTER OF THE STATE OF NEW YORK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

KARL MUENCH, AN INMATE IN THE CUSTODY OF 

NEW YORK STATE DEPARTMENT OF CORRECTIONAL 

SERVICES, RESPONDENT-APPELLANT.

 

J. SCOTT PORTER, SENECA FALLS, FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE

OF COUNSEL), FOR PETITIONER-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Oneida County (Anthony

F. Shaheen, J.), entered May 8, 2008 in a proceeding pursuant to

Mental Hygiene Law article 10. The appeal was held by this Court by

order entered December 30, 2009, decision was reserved and the matter

was remitted to Supreme Court, Oneida County, for further proceedings

(68 AD3d 1677). The proceedings were held and completed.

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs and a new trial is

granted.

Memorandum: Respondent previously appealed from an order

pursuant to Mental Hygiene Law article 10 committing him to a secure

treatment facility designated by the Commissioner of Mental Health

based upon a jury finding that he is a detained sex offender with a

mental abnormality that, inter alia, predisposes him to commit further

sex offenses. We concluded that the record was insufficient for us

“to determine whether Supreme Court erred in relinquish[ing] control

over the proceedings by permitting” the discharge of prospective

jurors outside the presence of the trial judge (Matter of State of New

York v Muench, 68 AD3d 1677). We therefore held the case, reserved

decision and remitted the matter to Supreme Court for a reconstruction

hearing. Upon remittal, the parties stipulated to an order concluding

that 22 prospective jurors were excused upon the authority of a

commissioner of jurors without knowledge or input from the trial

court, prior to the commencement of jury selection in court. 

Although this Mental Hygiene Law article 10 proceeding is civil

in nature and primarily governed by CPLR article 41 (see § 10.07 [b]),

the Criminal Procedure Law governs challenges to prospective jurors in
-2- 675 

CA 08-01301 

such proceedings (see id.; CPL 270.20, 270.25 [1]). The relevant

section of the Criminal Procedure Law provides that the court must

determine all issues of fact and, “[i]f [a] challenge [to a

prospective juror] is allowed, the court must exclude the person

challenged from service” (CPL 270.20 [2]). Further, respondent’s

challenge with respect to the discharge of certain prospective jurors

implicates his fundamental right to a jury trial (see Matter of State

of New York v Kalchthaler, 82 AD3d 1672). We note that “[t]he

presence of and supervision by a [j]udge constitutes an integral

component of the right to a jury trial . . . [Inasmuch as] the

selection of the jury is part of the . . . trial . . ., a [respondent]

has a fundamental right to have a [j]udge preside over and supervise

the voir dire proceedings while prospective jurors are being

questioned regarding their qualifications. A [j]udge who relinquishes

control over the proceedings or delegates the duty to supervise

deprives a [respondent] of the right to a trial by jury, requiring

reversal” (People v Toliver, 89 NY2d 843, 844; see People v Bosa, 60

AD3d 571, 572, lv denied 12 NY3d 923). Here, based on the procedures

employed by the Fifth Judicial District Coordinating Commissioner of

Jurors, 22 prospective jurors were excluded by that Commissioner

rather than by the court. Petitioner therefore correctly concedes

that respondent’s “fundamental right to have a [j]udge preside over

and supervise the voir dire proceedings while prospective jurors are

being questioned regarding their qualifications” was violated

(Toliver, 89 NY2d at 844). We therefore reverse the order and grant a

new trial.

Respondent failed to preserve for our review his further

contentions concerning the constitutionality of Mental Hygiene Law

article 10 (see generally People v Baumann & Sons Buses, Inc., 6 NY3d

404, 408, rearg denied 7 NY3d 742; People v Stuart, 100 NY2d 412, 425-

426 n 11; People v Davidson, 98 NY2d 738, 739-740), the comments made

by the Assistant Attorney General during his opening statement (see

People v Freeman, 46 AD3d 1375, 1376, lv denied 10 NY3d 840), and the

use of hearsay testimony (see People v Qualls, 55 NY2d 733, 734;

People v Bertone, 16 AD3d 710, 712, lv denied 5 NY3d 759). We decline

to exercise our power to review those contentions in the interest of

justice (see generally Matter of State of New York v Campany, 77 AD3d

92, 101, lv denied 15 NY3d 713).

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court