Introduction

In People v. Everson (2025 NY Slip Op 04363), the Appellate Division, Fourth Department, affirmed convictions for rape in the first degree and burglary in the second degree arising from two burglaries committed three days apart. The decision addresses two recurring trial-management issues in New York criminal practice:

• Whether the prosecution’s belated, out‑of‑order peremptory challenge to a prospective alternate juror requires reversal when no alternate ever participates in deliberations; and
• What remedies are required under the reformed discovery statute (CPL article 245) when the People belatedly disclose materials used and generated by a latent fingerprint examiner.

The majority holds there is no reversible error where an out‑of‑order peremptory strike involves a prospective alternate who never deliberates; and that a trial court does not abuse its discretion by denying an adjournment and fashioning other sanctions (such as an adverse inference) for late discovery, rejecting the notion that CPL 245.80(1)(a) mandates an adjournment in every case.

Justice Ogden dissented, reading CPL 245.80(1)(a)’s second sentence to require courts to grant the defense “reasonable time to prepare and respond to the new material” regardless of prejudice—thereby calling for an adjournment here.

Summary of the Judgment

• Disposition: Judgment affirmed.
• Key Holdings:
  • Peremptory challenge to alternate, exercised out of order: Even assuming a CPL 270.15(2) violation, the issue is moot where no alternates participated in deliberations; the composition of the deliberating jury was not affected.
  • Discovery violation (CPL 245.20(1)) and sanctions (CPL 245.80(1)(a)): Although the People failed to timely disclose certain fingerprint-analysis materials, the trial court did not abuse its discretion in declining to strike testimony, grant a mistrial, or adjourn; other sanctions were “appropriate and proportionate” to any prejudice.
  • Search warrant challenge: Overbreadth claim unpreserved; no discretionary review in the interest of justice.
  • Sentence: Not unduly harsh or severe.
• Dissent: Would reverse and grant a new trial because the court failed to provide the defense “reasonable time” to address newly disclosed fingerprint material as required by CPL 245.80(1)(a), independent of any prejudice showing.

Detailed Analysis

I. Precedents Cited and Their Influence

A. Order of Peremptory Challenges and Alternate Jurors

• CPL 270.15(2): Requires the People to exercise peremptory challenges first and forbids the People from peremptorily challenging any remaining prospective juror after the defense has exercised its peremptories.
• People v. Alston, 88 NY2d 519 (1996) and People v. De Conto, 172 AD2d 684 (2d Dept 1991), aff’d 80 NY2d 943 (1992): Defendants invoked these cases to argue that violations of CPL 270.15(2) can compel reversal when the order-of-challenge rules are not followed.
• People v. Pinero, 143 AD3d 428 (1st Dept 2016), lv denied 29 NY3d 1000 (2017); People v. Haardt, 129 AD3d 1322 (3d Dept 2015); People v. Rivera, 7 AD3d 358 (1st Dept 2004), lv denied 3 NY3d 741 (2004): These cases establish that irregularities relating to alternates are moot or harmless when alternates do not participate in deliberations.
• People v. Stephens, 255 AD2d 532 (2d Dept 1998), lv denied 92 NY2d 1039 (1998): Reinforces that deviations not affecting the composition of the jury that deliberated do not warrant reversal.

The Fourth Department follows this line, concluding any CPL 270.15(2) misstep affecting only a prospective alternate who never deliberated cannot have influenced the verdict and cannot be the basis for reversal.

B. Discovery Sanctions

• CPL 245.20(1): The People must disclose discoverable material, including items “relied upon or generated” by a forensic examiner, here a latent fingerprint analyst. The People conceded noncompliance.
• CPL 245.80(1)(a): Commands that the court impose a sanction “appropriate and proportionate to the prejudice suffered” and states, “Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material.”
• People v. Jenkins, 98 NY2d 280 (2002): Though predating article 245’s reforms, Jenkins remains a touchstone for reviewing discovery sanctions under an abuse-of-discretion standard.
• People v. Bookman, 224 AD3d 1269 (4th Dept 2024) and People v. Pugh, 236 AD3d 1298 (4th Dept 2025): Recent Fourth Department decisions emphasizing trial-court discretion in tailoring sanctions to prejudice.
• Dissent’s authorities: People v. Cerda, 40 NY3d 369 (2023); People v. Deverow, 38 NY3d 157 (2022); People v. Mosley, 41 NY3d 640 (2024); People v. Crimmins, 36 NY2d 230 (1975). These support the dissent’s focus on the constitutional right to present a defense, meaningful opportunity, and harmless-error framing.

The majority’s reliance on Bookman and Pugh signals continuity in the Fourth Department: trial judges retain wide latitude to craft non-drastic remedies for late disclosures, and appellate review is deferential.

II. Legal Reasoning Applied

A. Out‑of‑Order Peremptory Challenge to a Prospective Alternate Juror

After the court denied a for-cause challenge to an alternate, the prosecutor initially declined a peremptory strike, then attempted to exercise one—after the defense had passed. The defense objected under CPL 270.15(2). The court permitted the strike. On appeal, the majority found:

• The record reflects a belated peremptory strike rather than a granted cause challenge.
• Any error was moot because no alternate participated in deliberations, meaning the composition of the deliberating jury was unaffected.
• Defense speculation that the irregularity affected later tactical choices (e.g., whether to object to two sworn jurors’ passing remarks to a witness) did not show cognizable prejudice; the court’s inquiry established no “misconduct of a substantial nature” under CPL 270.35(1).

In short, violations pertaining solely to prospective alternates who never deliberate do not require reversal.

B. Discovery Violation and Sanctions

The People failed to timely disclose materials the latent fingerprint examiner used and generated. The trial court found noncompliance with CPL 245.20(1) and imposed a sanction—an adverse inference instruction—while denying the defense’s requests to strike the detective’s testimony, grant a mistrial, or adjourn the trial to permit further preparation or expert consultation.

The majority held:

• Sanctions are reviewed for abuse of discretion.
• The court’s remedy was “appropriate and proportionate” to any prejudice suffered.
• There is no categorical rule that late disclosure of forensic materials compels striking testimony, a mistrial, or an adjournment; those are case-specific remedies, not mandatory outcomes.

By affirming, the majority implicitly rejects a per se adjournment requirement under CPL 245.80(1)(a) and signals that an adverse inference coupled with continued trial can suffice where prejudice is mitigable.

C. Preservation and Sentencing

• Search warrant overbreadth: Unpreserved; no interest-of-justice review exercised (CPL 470.15(6)(a)).
• Sentence: Not unduly harsh or severe; affirmed.

III. The Dissent’s Perspective

Justice Ogden would reverse, focusing on the second sentence of CPL 245.80(1)(a): “Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material.”

• Statutory construction: The dissent reads the statute as creating two separate obligations—(1) a prejudice-based sanction and (2) a mandatory grant of reasonable time to respond—both of which must be satisfied. Granting an adverse inference alone does not discharge the second obligation.
• Constitutional dimension: Denial of time impeded effective cross-examination and the defense’s ability to consult or retain an expert, undermining the “meaningful opportunity to present a complete defense” (Cerda; Deverow).
• Harmless-error analysis: The dissent notes mixed verdicts (acquittals on two counts tied to a third burglary) and finds no overwhelming proof across the board; in any event, there is a reasonable possibility the error contributed to the convictions (Crimmins; Mosley).

The dissent thus sets up a clean statutory issue likely to attract further appellate attention: is “reasonable time” to address late discovery mandatory irrespective of prejudice?

IV. Impact and Implications

A. Alternate Juror Irregularities

• Practical rule: An out-of-order peremptory strike relating to a prospective alternate is not reversible error when no alternate deliberates. This reinforces a consistent cross-departmental line (Pinero, Haardt, Rivera, Stephens).
• Defense strategy: To preserve and prevail on such claims, defense counsel must make a record that the irregularity affected the composition of the deliberating jury or resulted in a specific, concrete prejudice beyond speculation.

B. Discovery and Trial Management Under Article 245

• No per se adjournment: Everson confirms that denial of an adjournment can be upheld where courts impose other proportionate remedies and the defense cannot show irremediable prejudice.
• Adverse inference as a viable remedy: Courts may rely on adverse inference instructions to mitigate late disclosure of forensic materials, particularly when the defense has meaningful cross-examination opportunities.
• Open question: The dissent’s plain-language reading could catalyze a Court of Appeals decision clarifying whether “reasonable time” is mandatory. Trial courts and litigants should preserve this issue clearly.
• Forensic practice implications: Prosecutors should audit forensic workflows to ensure disclosure of everything “relied upon or generated.” Late disclosure risks adverse inferences and contested trial interruptions; nonetheless, convictions will not automatically be jeopardized if courts craft adequate remedies.

C. Harmless Error and Mixed Verdicts

• Mixed verdicts often complicate harmless-error analysis. The dissent underscores that acquittals on some counts may weaken an “overwhelming evidence” claim and, at minimum, invoke the “reasonable possibility” test under Crimmins and Mosley.

Complex Concepts Simplified

• Peremptory challenge: A party’s right to exclude a prospective juror without stating a reason (subject to Batson limits), exercised in a prescribed order under CPL 270.15(2).
• For-cause challenge: A request to exclude a juror due to a specific reason (bias, inability to be fair, statutory disqualification).
• Alternate juror: A sworn juror who replaces a deliberating juror if needed; if no alternate replaces anyone, alternates do not deliberate or affect the verdict.
• Adverse inference instruction: A jury charge permitting (or directing) jurors to infer that missing or belatedly produced evidence would have been unfavorable to the party responsible for its absence or delay.
• CPL 245.80(1)(a): Requires a remedy proportionate to prejudice from late discovery and (as written) says the entitled party must be given reasonable time to respond to new material; Everson treats the remedy component as discretionary and rejects a categorical adjournment rule.
• “Misconduct of a substantial nature” (CPL 270.35(1)): Juror conduct that meaningfully threatens impartiality or adherence to court instructions; casual, non-case-related remarks (e.g., about a recess) usually do not qualify.
• Harmless-error analysis (Crimmins): Appellate courts ask whether there is no reasonable possibility that the error contributed to the conviction; some constitutional errors defy or heighten this test.

Practice Notes

• Preserve clearly: When challenging peremptory-order violations, specify how the irregularity altered the deliberating jury or constrained defense peremptories.
• Build the prejudice record: For late discovery, detail exactly why an adjournment is necessary (expert retention, supplemental testing, targeted cross topics) and, if denied, proffer what the defense would pursue with more time.
• Request tailored remedies: Ask the court to consider a spectrum—adjournment, preclusion, adverse inference, expanded cross-examination—linked to concrete prejudice.
• For prosecutors: Institute robust discovery checklists for forensic units, including examiner notes and materials “generated” during analysis, to avoid litigation over article 245 compliance.
• For trial courts: Make explicit findings on (a) prejudice and (b) the “reasonable time” language in CPL 245.80(1)(a). This creates a sturdy record should the Court of Appeals later clarify the statute.

Conclusion

People v. Everson cements two practical appellate propositions in New York criminal trials: First, an out‑of‑order peremptory challenge relating solely to a prospective alternate juror is moot where no alternate deliberates; such a misstep does not warrant reversal absent an effect on the deliberating jury’s composition. Second, late discovery under article 245 does not automatically entitle the defense to an adjournment; trial courts retain broad discretion to impose “appropriate and proportionate” remedies—such as adverse inferences—without halting the trial, provided the defense cannot show unmitigable prejudice.

The dissent’s statutory argument, however, squarely presents an unresolved question: whether CPL 245.80(1)(a) independently obligates courts to afford “reasonable time” to respond to new material, irrespective of prejudice. Until the Court of Appeals weighs in, Everson signals that in the Fourth Department, carefully crafted, non-drastic sanctions will often suffice, and appellate courts will defer to trial judges’ management of late disclosure disputes.