88 N.Y.2d 1 (1996)
Under New York law, substitution of an alternate juror after deliberations have begun requires the defendant’s explicit written consent, personally signed in open court, to ensure protection of the constitutional right to a jury of twelve.
Summary
Kenneth Page was convicted of grand larceny and unauthorized use of a vehicle. After jury deliberations began, a juror became ill and was excused. Defense counsel stated that Page consented to substituting an alternate juror, and Page confirmed this orally. However, the court did not obtain written consent. Page appealed, arguing that the lack of written consent violated CPL 270.35 and the state constitution. The Court of Appeals reversed, holding that written consent is mandatory for a valid waiver of the right to a jury of twelve when substituting an alternate juror post-deliberation. The court emphasized the importance of the written consent requirement as a safeguard of the constitutional right to a jury trial.
Facts
Page was accused of stealing Erik Moore’s car. After jury selection, including alternates, one juror was replaced mid-trial due to absence (not at issue on appeal). After deliberations began, a juror became ill and was excused. Page’s counsel informed the court that Page consented to replacing the juror with an alternate, citing Page’s lengthy incarceration and desire for resolution. Page orally confirmed his consent. The trial court instructed the reconstituted jury to begin deliberations anew. Page was convicted.
Procedural History
Page moved to set aside the verdict under CPL 330.30(1), arguing the juror substitution was invalid without written consent. The trial court denied the motion. The Appellate Division affirmed, stating that requiring written consent would elevate form over substance. The New York Court of Appeals granted leave to appeal.
Issue(s)
Whether, under CPL 270.35 and the New York Constitution, a defendant’s oral consent is sufficient to substitute an alternate juror after deliberations have commenced, or whether written consent, signed by the defendant in open court, is required.
Holding
No, because CPL 270.35 and the New York Constitution mandate written consent, personally signed by the defendant in open court, for a valid waiver of the right to a jury of twelve when an alternate juror is substituted after deliberations have begun.
Court’s Reasoning
The court emphasized the constitutional right to a jury trial, which includes the right to a jury of twelve. While this right can be waived, the New York Constitution requires a written instrument signed by the defendant in open court. CPL 270.35 mirrors this requirement for juror substitution during deliberations, incorporating the constitutional safeguard. The court reasoned that this explicit requirement ensures the defendant fully understands the implications of waiving the right to a jury of twelve. The court distinguished federal law, noting that the federal constitution does not guarantee a jury of twelve. It rejected the argument that instructing the reconstituted jury to begin deliberations anew cured the defect, as the initial substitution without written consent was a violation. The court stated that the framers added the requirement of a written, signed instrument to article I, § 2 in order to ensure that criminal defendants understood the significance of giving up their fundamental right to a jury trial and its essential components, noting, “it is a human habit to think twice before one signs a paper.”