New trial ordered in harassment case after prosecutor allowed on jury

A state appeals court has reversed contempt and harassment convictions and granted a new trial for the defendant because the judge allowed an attorney from the prosecutor’s office to sit on the jury.

Defendant Melchor Cortes was convicted in December 2017 in state Supreme Court in Queens before Justice Deborah Stevens Modica of first-degree criminal contempt and second-degree aggravated harassment.

In a decision released Wednesday, the Appellate Division of state Supreme Court, Second Department, ordered a new trial “because the Supreme Court erred in denying the defendant’s for-cause challenge to a prospective juror.”

“A prospective juror may be challenged for cause on several grounds, including that he or she has a ‘relationship’ with counsel for the People of such a nature that it is likely to preclude him (or her) from rendering an impartial verdict,” the appellate panel wrote.

“Such ‘implied bias requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect (his or) her ability to be fair and impartial,” the court wrote.

During jury selection, the prospective juror told Modica that she was working as an assistant district attorney in the Queens County District Attorney’s Office, the agency that was prosecuting Cortes.

The prospective juror said she was familiar with the prosecutor, the defense attorney, and the judge.

The prosecutor conceded that the juror’s working relationship with the DA’s office required the juror’s dismissal for cause, according to the decision.

“Because the defendant challenged this juror for cause and thereafter exhausted all of his peremptory challenges prior to the completion of jury selection, the court’s error in denying the for-cause challenge requires reversal of the judgment of conviction and remittitur for a new trial,” the court wrote.

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