| People v Wlasiuk |
| 2011 NY Slip Op 09544 [90 AD3d 1405] |
| December 29, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Peter M.Wlasiuk, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Mercure, A.P.J. Appeal from a judgment of the County Court of Chenango County (Smith,J.), rendered November 17, 2008, upon a verdict convicting defendant of the crime of murder inthe second degree.
Defendant was convicted in 2003 of the crime of murder in the second degree in connectionwith the death of his wife (hereinafter the victim), whose body was found next to defendant'ssubmerged pick-up truck at the bottom of Guilford Lake. Defendant was present at the scene and,when the ensuing investigation both contradicted his version of the events and revealed evidencesuggesting that he had killed the victim at their home and then staged a motor vehicle accident,police became suspicious. Upon defendant's appeal from his judgment of conviction, this Courtconcluded that "the cumulative effect of a litany of errors deprived defendant of a fair trial" and,therefore, we reversed (People vWlasiuk, 32 AD3d 674, 675 [2006], lv dismissed 7 NY3d 781 [2006]).Following remittal, County Court granted defendant's motion for dismissal of the originalindictment.
Thereafter, the People were given permission to resubmit the charge to a grand jury.Defendant was again indicted in 2007 and convicted of murder in the second degree at the closeof a second jury trial. County Court denied his subsequent CPL 330.30 motion to set aside the[*2]verdict, and sentenced defendant to 25 years to life in prison.Defendant appeals and, because we conclude that he was denied the effective assistance ofcounsel at trial, we now reverse.
Initially, we reject defendant's argument that the verdict was against the weight of theevidence.[FN1]To support the verdict of intentional murder in the second degree, the People were required toprove that "[w]ith intent to cause the death of [the victim], [defendant] cause[d] [her] death"(Penal Law § 125.25 [1]). At trial, the People presented evidence that, on the night of theaccident, defendant provided several differing accounts of the events leading to the victim'sdeath. At times, defendant indicated that he was driving his pick-up truck and had swerved tomiss a deer, driven into the lake, and that the victim was still in the truck; at other points, hestated that the victim was driving and had swerved to miss a deer, and that he was able to pull thevictim out of the truck but not out of the water. In the days and months following the accident,defendant continued to give different accounts to investigators, stating that the victim hadswerved, fishtailed and then driven into the lake at 50-60 miles per hour, that he and the victimhad been sucked under the truck, and that the victim was not drinking before the accident;subsequently, he claimed that the victim had been drinking prior to the accident and had driveninto the lake after making a k-turn while arguing with him, rather than swerving to avoid a deer.
None of these descriptions of the incident was consistent with the testimony of an accidentinvestigator and reconstructionist. They opined that the truck—which was not significantlydamaged—was traveling no more than 30 miles per hour when it entered the lake throughthe only direct opening to the water from the road in the vicinity, and observed that there were noskid or yaw marks suggesting that the vehicle swerved to avoid a deer, or indications that thevehicle made a k-turn before entering the lake. In addition, the doors of the truck were closed andlocked, casting doubt on defendant's statement that he had escaped through the passenger door.Witnesses nearby did not hear any sounds of a car accident or defendant screaming the victim'sname, as he claimed to have done, and defendant told a resident who attempted to rescue thevictim after 911 was called not to go into the cold water because it was dangerous. Furthermore,first responders at the scene indicated that defendant's hair was neat and dry, he was nothypothermic, did not seem to be cold, and appeared to be faking his shivering, despite his claimsthat he had been in the approximately 40-degree lake water for several minutes. When taken tothe hospital approximately two hours after the accident, defendant's body temperature wasnormal and he had no physical complaints, although he expressed his desire to have the victim'sorgans donated and her body immediately cremated.
Defendant's neck, however, was observed to be bruised and scratched, and the victim's bodybore injuries that were both inflicted before her death and consistent with having been smotheredafter a struggle, rather than sustained in a low-impact automobile accident. Moreover, burdockburrs were found in the victim's hair and on her clothing, notwithstanding testimony that therewere no burdocks near the portion of the lake surrounding the accident; in contrast, police [*3]recovered a damaged burdock bush at the couple's residence thathad strands of the victim's hair on it. The victim's hair and pager—which she alwayscarried—were also found in the bed of the pick-up truck when it was extracted from thelake. Finally, there was evidence that defendant had recently taken out a life insurance policy onhimself and the victim, stood to gain a death benefit from the state retirement system if the victimdied, had been physically violent with the victim, isolated her from her family, threatened to killher, and had expressed his opinion that it would be easy to kill someone and make it look asthough the person had drowned in Guilford Lake. We note that defendant did present evidencethat the truck was driving closer to 40-45 miles per hour, that there were burdocks in the area ofthe accident, that the victim's injuries were consistent with an automobile accident, and that herdeath was caused by drowning. Nevertheless, "giv[ing] due deference to the factfinder'sresolution of witness credibility and conflicting evidence," we conclude that, while a differentverdict would not have been unreasonable, the jury gave the evidence the weight that it shouldhave been accorded and was justified in finding defendant guilty beyond a reasonable doubt (People v Romero, 7 NY3d 633,643 [2006]; see People v Timmons,78 AD3d 1241, 1243-1244 [2010], lv denied 16 NY3d 833 [2011]; People v Thibeault, 73 AD3d1237, 1239-1240 [2010], lv denied 15 NY3d 810 [2010], cert denied 562 US—, 131 S Ct 1691 [2011]; People v Bierenbaum, 301 AD2d 119, 131-140 [2002],lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003]).
We agree with defendant, however, that reversal is nonetheless required because he receivedineffective assistance of counsel. Specifically, counsel—without a reasonablestrategy—(1) failed to join in the prosecutor's request that juror No. 5 be discharged forcause once it became clear that the juror had committed misconduct in obtaining his seat on thejury, and (2) introduced evidence that this Court previously held to be unduly prejudicial,inadmissible hearsay.
With respect to the juror, when the names of potential witnesses were read during juryselection, juror No. 5 indicated that he knew Joyce Worden—defendant's paramour, whowas also the baby-sitter for the couple's young children—as a patient in his podiatricmedical practice. He expressly denied knowing any other witnesses. Juror No. 5 furthermaintained that he could be fair despite his prior professional relationship with Worden. Hestated that he did not "even know much about the [first] trial," because he had recently moved tothe area and had been busy with his medical practice and child-rearing at the time. He was thensworn as a juror and excused for the day.
During the lunch recess that immediately followed, the lead police investigator in the case,Lieutenant James Lloyd, informed the People that juror No. 5 had been interviewed by police atthe time of the victim's death. The interview with Detective Gerald Parry—whose namewas also read to juror No. 5 from the potential witness list and who ultimately testified attrial—was written up in the police lead sheet, which the People read into the record. Thelead sheet indicated that juror No. 5 had informed police that he knew the victim, had workedwith her at a hospital, had heard nurses discussing the victim's "problem with her husband," andreferred police to other hospital employees who had further information about defendant's priorviolent acts towards the victim. In response to this information, the People and County Courtwere indifferent regarding whether juror No. 5 should remain. Defense counsel, however,adamantly resisted the discharge of juror No. 5, stating: "I'm not going to pick a jury and have[Lieutenant] Lloyd decide he doesn't like somebody on the jury or he interviewed [*4]somebody . . . I don't want [Lieutenant] Lloyd to findout who the jurors are and then decide that he's not happy with one of them and come up with areason to have that juror disqualified."
The next day, following completion of jury selection but before the jury was givenpreliminary instructions, defense counsel advised County Court that he had been contacted byWorden, who had been a witness for the defense during the first trial. Worden told counsel thatjuror No. 5 had a conflict inasmuch as, while treating her as a patient, he had asked her manyquestions about the case. Although defense counsel asserted that he liked jurors who askedquestions and wanted juror No. 5 to remain on the jury, County Court became concerned that thejuror had not been forthright during voir dire. In addition, the People expressed grave doubtsabout the fitness of juror No. 5, stating that "his calling the police and being involved in theinvestigation and his failing to disclose that [fact] . . . has demonstrated that he ishighly unqualified . . . to be a juror in this particular matter." Essentially, the Peoplerequested that the juror be dismissed for cause—as grossly unqualified under CPL 270.35(1)—and claimed that they would have exercised a peremptory challenge against the jurorhad this information come to light when peremptory challenges remained available.[FN2]
During an in camera inquiry, juror No. 5 revealed that he had treated defendant's childrenafter the first trial, but had not mentioned the relationship because the children were not namedon the witness list. Although the juror initially indicated that he did not recall speaking to policeabout the case, he eventually admitted that he had been interviewed by Parry after the courtinformed him that the police lead sheets described the interview. The juror stated, however, thathe had no "real affiliation with" the victim and had no information for police. In addition, thejuror denied asking Worden questions about the case, explaining that she started to discuss itwith him, but he steered the conversation back to her medical condition. The juror then sworethat he could remain fair and impartial, and County Court did not discharge him.[FN3]
Defendant now argues that County Court committed reversible error in failing to dismissjuror No. 5 when it became clear that the juror was grossly unqualified under CPL 270.35 (1).Pursuant to that statute, "[a] sworn juror must be discharged when facts come to light, whichwere not known at the time the jury was empaneled, indicating that the juror is 'grosslyunqualified to serve' " (People v Harris, 99 NY2d 202, 212 [2002], quoting CPL 270.35[1]). In determining whether the sworn juror is "grossly unqualified," the court must, "[i]n aprobing and tactful inquiry, . . . evaluate the nature of what the juror has seen,heard, or has [*5]acquired knowledge of, and assess itsimportance and its bearing on the case" (People v Buford, 69 NY2d 290, 299 [1987]).This test is more stringent than that used in resolving a for-cause challenge. While, under CPL270.20 (1) (b), a challenge for cause is permissible when a prospective juror "has a state of mindthat is likely to preclude him [or her] from rendering an impartial verdict based upon theevidence adduced at the trial" (emphasis added), a sworn juror may be discharged as grosslyunqualified over a defendant's objection "only when it becomes obvious that [the]particular juror possesses a state of mind which would prevent the rendering of an impartialverdict" (People v Buford, 69 NY2d at 298 [internal quotation marks and citationomitted] [emphasis added]).
Although the People impliedly sought to advance a for-cause challenge to juror No. 5 underCPL 270.15 (4), defense counsel and County Court addressed only whether juror No. 5 should bedischarged as "grossly unqualified" under CPL 270.35 (1).[FN4]In that regard, "a juror's concealment of any information during voir dire is [not] by itself causefor automatic reversal" of a refusal to discharge a sworn juror under CPL 270.35 (People vRodriguez, 100 NY2d 30, 34 [2003]). In any event, defense counsel opposed removal ofjuror No. 5 pursuant to CPL 270.35 and, thus, defendant waived his present assertion that he wasdenied a fair trial due to the court's refusal to dismiss the juror as grossly unqualified under thatprovision (see People v Hinton, 302 AD2d 1008, 1009 [2003], lv denied 100NY2d 539 [2003]; cf. People vGarraway, 9 AD3d 506, 506 [2004], lvs denied 3 NY3d 674, 740 [2004]).
In the alternative, defendant argues—and we agree—that he was denied theeffective assistance of counsel due to defense counsel's refusal to consent to the removal of jurorNo. 5 for cause. Pursuant to CPL 270.15 (4), "[a] challenge for cause of a prospective jurorwhich is not made before he [or she] is sworn as a trial juror shall be deemed to have beenwaived, except that such a challenge based upon a ground not known to the challenging party atthat time may be made at any time before a witness is sworn at the trial." As relevant here, a jurormay be challenged for cause when he or she "has a state of mind that is likely to preclude [the]rendering [of] an impartial verdict" (CPL 270.20 [1] [b]), as noted above. In addition, a for-causechallenge is permitted when a juror "bears some . . . relationship" to the defendant,victim or a prospective witness at the trial "of such nature that it is likely to preclude him [or her]from rendering an impartial verdict" (CPL 270.20 [1] [c]).
With respect to the first ground, implicating a juror's state of mind, we note—as ageneral matter—when "prospective jurors unambiguously state that, despite preexistingopinions that might indicate bias, they will decide the case impartially and based on the evidence,the trial [*6]court has discretion to deny [a] challenge for cause ifit determines that the juror's promise to be impartial is credible" (People v Arnold, 96NY2d 358, 363 [2001]). The "mere words" or a "hollow incantation," however, are not sufficient;"[w]here there remains any doubt in the wake of such statements, when considered in the contextof the juror's over-all responses, the prospective juror should be discharged for cause" (Peoplev Blyden, 55 NY2d 73, 78 [1982]). Moreover, when the prospective juror's bias is based notupon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon thedefendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basisof the juror's impression and thus may not alter this impression" (People v Torpey, 63NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under suchcircumstances, " 'the test for whether [the juror's] bias has been overcome by declarations is evenstricter than where the juror has expressed an opinion as to the defendant's guilt . . .[T]he prospective juror should be dismissed if there appears to be any possibility that his[or her] impressions . . . might influence [the] verdict' " (People v Johnson,94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368).
Here, juror No. 5's bias appeared to arise from his knowledge of defendant's reputation forcommitting domestic violence against the victim. At the time that the People made theirchallenge for cause, counsel was aware that juror No. 5 claimed that he had moved to the areajust prior to the victim's death and knew very little of the background of the case,when—in actuality—he had met and worked with the victim, indicated to police atthe time of her death that he was aware of allegations that defendant had abused her, and referredpolice to other coworkers of the victim who had additional knowledge about defendant's acts ofdomestic violence against her. Inasmuch as the admissibility of evidence of defendant's priorabusive acts to the victim was a hotly contested issue at both of defendant's trials—and abasis for our reversal of defendant's first conviction (People v Wlasiuk, 32 AD3d 674, 676-678 [2006],supra)—we cannot say that the prospective juror's assurances of impartialitydispelled the appearance of "any possibility that his impressions . . . mightinfluence his verdict" (People v Johnson, 94 NY2d at 614 [internal quotation marks andcitation omitted]).
Furthermore, while juror No. 5 revealed his professional relationship to Worden, it wasevident that he had not disclosed his contact with an investigating officer who testified at trial, orhis professional relationship with the victim as a coworker and her children as his patients, untilhe was confronted by the trial court. In addition, Worden's description of the nature of his contactwith her differed from that of juror No. 5, and she informed defense counsel that the juror had aconflict based upon his questioning of her. These relationships, taken together, are indicative of"far more than a 'nodding acquaintance' " (People v Littebrant, 55 AD3d 1151, 1154 [2008], lv denied12 NY3d 818 [2009], quoting People v Provenzano, 50 NY2d 420, 425 [1980]). Rather,they implicate the challenge for-cause ground set forth in CPL 270.20 (1) (c) because they"indicate[ ] an 'implied bias' which would likely . . . preclude[ ] the juror fromrendering an impartial verdict" (People v Meyer, 78 AD2d 662, 664 [1980]; seePeople v Furey, 18 NY3d 284, 287 [2011]; People v Rentz, 67 NY2d 829, 830-831[1986]; People v Branch, 46 NY2d 645, 650-651 [1979]). When such a showing ofimplied bias has been made, a prospective juror's declarations of impartiality, such as those madeby juror No. 5, are ineffective (see People v Furey, 18 NY3d at 287; People vRentz, 67 NY2d at 831; People v Branch, 46 NY2d at 651).
In sum, evidence of the juror's actual and implied bias "cast serious doubt on [his] ability torender a fair verdict under the proper legal standards" (People v Bludson, 97 NY2d 644,646 [2001]). Given the "evidence that this particular . . . juror would not have beenimpartial" (People v Colon, 71 NY2d 410, 418-419 [1988], cert denied 487 US1239 [1988]), we conclude that defense counsel's strategy in opposing the removal of juror No. 5for cause "fell short of an objective standard of reasonableness" and denied defendant a fair trial(People v Turner, 5 NY3d 476,485 [2005]; accord People v Rivera,45 AD3d 1249, 1251 [2007], lv denied 10 NY3d 770 [2008]).
Moreover, while the failure to challenge a prospective juror for cause generally does not, initself, constitute ineffective assistance of counsel (see People v Turck, 305 AD2d 1072,1073 [2003], lv denied 100 NY2d 566 [2003]), defense counsel further erred inconsenting to the jury's consideration of exhibit RRRR, without a limiting instruction. Thatexhibit, an evidence log created by police, contained a description of the victim's diary entriesexpressing her fear that defendant might seriously injure or kill her, as well as her dissatisfactionwith defendant's sexual relationship with Worden. This Court previously held that the diaryentries were inadmissible hearsay that was highly prejudicial to defendant (People vWlasiuk, 32 AD3d at 678-679). Although the description of the diary's content in theevidence log added yet another layer of hearsay, it was defense counsel who offered the logs toshow the contents of the victim's pockets and as proof that police mishandled evidence in thecase. The admission of the police logs themselves for that limited purpose may have been amatter of strategy, but the reference to the content of the diary entries remains inadmissiblehearsay and the failure to redact the police logs constituted error (see id.).
Moreover, in response to a jury note asking if the diary entries could be considered asevidence, defense counsel failed to request any limiting instruction, stating, "Yeah, they can haveit. It's evidence." Less than 10 minutes later, the jury reached its verdict. Certain jurorssubsequently revealed that they switched their votes to guilty based upon the diaryentries—indeed juror No. 5 gave television interviews explaining that he convinced "threeholdouts" to vote guilty based upon the diary entries—and defense counsel conceded thathe should have requested a limiting instruction. In our view, the submission of the diary entrieswithout limiting instructions "seriously impinged upon defendant's right to a fair trial"(People v Greene, 306 AD2d 639, 643 [2003], lv denied 100 NY2d 594 [2003][internal quotation marks and citation omitted]; accord People v Montgomery, 22 AD3d 960, 963 [2005]), furtherdepriving him of the effective assistance of counsel.
Many of defendant's remaining arguments are rendered academic by our determination that anew trial is required herein. We have considered and rejected as meritless his assertions thatCounty Court improperly denied his motions to suppress evidence and to dismiss the indictment.
Malone Jr., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Chenango County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: Defendant also challenges thelegal sufficiency of the evidence. Although he failed to preserve this challenge, we neverthelessmust consider the sufficiency of the proof in determining whether all elements of the chargedcrime were proven beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Nesbitt, 69 AD3d 1109,1110-1111 [2010], lv denied 14 NY3d 843 [2010]).
Footnote 2: Once a juror has been sworn,peremptory challenges are no longer available; a challenge for cause is permissible, but onlybefore the first witness is sworn at trial and only "upon a ground not known to the challengingparty" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335,349-350 [1982], cert denied 460 US 1047 [1983]).
Footnote 3: It was subsequently discoveredafter trial that juror No. 5 also failed to reveal that another potential witness was counsel for theplaintiff in a medical malpractice action pending against the juror.
Footnote 4: The facts regarding the juror'spolice interview, professional relationship with the victim and knowledge of her maritalproblems—but not his questioning of Worden and treatment of defendant'schildren—came to light after the juror was sworn, but before he was empaneled.Nevertheless, the parties do not address the relevance of CPL 270.15 (3), which governs thedischarge for incapacity of "juror[s] already sworn" "before twelve jurors are sworn" and, thus,we do not consider whether discharge was available "under the purportedly more narrowlanguage in CPL 270.15" (People vWells, 15 NY3d 927, 928, 930 [2010], cert denied 565 US —, 132 S Ct123 [2011]).