| People v Benet |
| 2007 NY Slip Op 09274 [45 AD3d 1449] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Miguel A.Benet, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered May4, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal possession of a weapon in the second degree (Penal Law former § 265.03 [2]) andcriminal possession of a weapon in the third degree (former § 265.02 [4]). The record doesnot support the contentions of defendant that it is unclear whether the jury convicted him of thecrimes for which he was indicted and whether the jury's verdict was unanimous. Contrary todefendant's contention, the People did not present evidence of two separate acts of possession ofa handgun. Rather, the People presented evidence that defendant pointed a loaded 10 millimeterhandgun at the victim and that he threw the handgun upon his immediate flight from the police.The People thereby presented evidence of one continuing act of possession rather than twoseparate acts of possession. Furthermore, we note that the prosecutor obviated any potential forjuror confusion with respect to the possibility of two separate acts of possession when he statedduring his summation that the case involved "one incident" (see generally People vHutchinson, 213 AD2d 1048, 1048-1049 [1995], lv denied 86 NY2d 736 [1995]).
We reject the further contention of defendant that County Court erred in denying hischallenge for cause to a prospective juror who admitted to using the word "Spic." When aprospective juror makes a statement revealing a bias that "raise[s] a serious doubt regarding [hisor her] ability to be impartial," the prospective juror must be excused for cause unless he or sheprovides an unequivocal assurance that any bias can be set aside and that an impartial verdict canbe rendered based solely on the evidence (People v Chambers, 97 NY2d 417, 419[2002]). "[I]n considering whether a challenge for cause should have been granted, [the court]must look not to characterizations or snippets of the voir dire but to the full record of what thechallenged [prospective] juror[ ]—sworn to speak truthfully—actually said"(People v Johnson, 94 NY2d 600, 615 [2000]). Here, the responses of the prospectivejuror as a whole, including his [*2]indication that he would finddefendant not guilty prior to hearing the evidence, unequivocally demonstrated that he could setaside any bias and act as an impartial juror (see Chambers, 97 NY2d at 419).
We also reject defendant's contention that the court committed reversible error byrefusing to conduct an inquiry of the jury at trial after a juror audibly sighed following defensecounsel's motion for a mistrial during a police officer's testimony regarding a neck injury.Because the trial judge "ha[d] the benefit of his own observations," it was within his discretion todetermine that it was unnecessary to conduct an inquiry of the jury to determine whether theaudible sigh caused possible prejudice to defendant (People v Garrow [appeal No. 2], 233AD2d 856, 856 [1996], lv denied 89 NY2d 985 [1997]) and, indeed, the trial judgeinstead immediately instructed the jury that jurors may not allow sympathy for the People'switnesses to interfere with their impartiality. In any event, even assuming, arguendo, that thejuror sighed because he or she was irritated by the fact that defense counsel had moved for amistrial, we conclude that a jury inquiry was not necessary because "a sworn juror should not bedischarged merely because [he or] she is irritated with one of the attorneys" (People vBuford, 69 NY2d 290, 298-299 [1987]).Finally, we reject defendant's contention that the verdict is against the weight of theevidence, particularly in view of the eyewitness testimony of two police officers (see generally People v Romero, 7NY3d 633, 643-644 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). We havereviewed defendant's remaining contentions and conclude that they are without merit.Present—Gorski, J.P., Smith, Centra, Lunn and Peradotto, JJ.