People v. Mercado

Order, Supreme Court, Bronx County (Ira Globerman, J.), entered June 27, 2000, which denied defendant’s motion pursuant to CPL 440.10 (1) (h) to vacate a judgment of the same court and Justice, rendered February 13, 1996, convicting him, after a jury trial, of burglary in the first degree, robbery in the first degree, assault in the first degree, and criminal impersonation in the second degree, and imposing sentence, unanimously reversed, on the law, and the matter remanded to the Supreme Court, Bronx County, for a hearing on the motion.

In 1996, defendant was convicted, after a jury trial in Bronx County Supreme Court, of burglary in the first degree, robbery in the first degree, assault in the first degree, and criminal impersonation in the second degree. Several years later, it came to the attention of the Bronx County District Attorney’s office that one of the jurors who sat on the jury which found defendant guilty was himself a convicted felon. The District Attorney’s office notified defendant of this circumstance, and defendant moved to vacate his conviction pursuant to CPL 440.10 (1) (h) on the ground that he was denied his right to a fair and impartial jury. In the alternative, defendant requested a hearing. The People opposed on the grounds that defendant alleged no constitutional violation and that he failed to demonstrate any prejudice. The court denied the motion without a hearing finding that no Sixth Amendment right was implicated.

That the convicted felon was disqualified from sitting on the jury pursuant to Judiciary Law § 510 (3) does not require a new trial (see, Smith v Phillips, 455 US 209, 215; United States v Uribe, 890 F2d 554). However, defendant is entitled to an evidentiary hearing at which he may attempt to establish that the juror’s failure to disclose his conviction resulted in actual bias (United States v Boney, 68 F3d 497; United States v Boney, 977 F2d 624; see also, Young v United States, 694 A2d 891 [DC 1997]). Concur — Nardelli, J.P., Saxe, Lerner, Rubin and Mar-low, JJ.