Relates to discretionary retention of alternate jurors after final submission of the case

BILL NUMBER:S5004

Title of bill

An act to amend the civil practice law and rules in relation to the discretionary retention of alternate jurors after final submission of the case

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.

This measure would amend CPLR 4106 to permit the court, in its discretion, to retain one or more alternate jurors after final submission of a case to ensure availability if needed during jury deliberations. The proposed amendment of section 4106 also addresses the manner in which the retained alternate jurors may be utilized.

Current CPLR 4106 provides that after final submission of the case, "the court shall discharge the alternate jurors". As a consequence, in the event that a juror becomes disabled during deliberations, the court must declare a mistrial unless all parties consent to proceed with a five person jury, which consent is rarely obtained. In cases of several weeks' duration, classically commercial, medical malpractice or products liability cases, a mistrial results in a tremendous waste of time and money for the litigants, the attorneys, and the court, and frustration for the remaining jurors who have served throughout a prolonged trial in an effort to render a verdict. There is a continuing disparity among many courts statewide as to the practice regarding alternate jurors.

This measure also would amend CPLR 4106 to address the manner in which the retained alternate jurors may be utilized by providing that once deliberations have begun, the court may allow an alternate juror to participate in such deliberations only if a regular juror becomes unable to perform the duties of a juror.

This measure also makes gender-neutral changes.

In proposing this measure, our Advisory Committee expresses its appreciation for the recommendations of Honorable Philip G. Minardo, former Administrative Judge, Richmond County. Judge Minardo made his recommendations on behalf of and with the support of the New York State Association of Supreme Court Justices and the New York City Association of Supreme Court Justices.

This measure would have no fiscal impact on the State. It would take effect on the first day of January next succeeding the date on which it shall become law and shall apply to all actions commenced on or after that effective date and to all pending actions in which a jury has not yet been selected.

2012 Legislative History: Senate 6658-A (Bonacic) Rules Assembly 10376 (M. of A. Skartados) Passed