| People v Givans |
| 2007 NY Slip Op 09281 [45 AD3d 1460] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Al A. Givans,Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJuly 8, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of acontrolled substance in the second degree and conspiracy in the second degree and, upon a pleaof guilty, of aggravated unlicensed operation of a motor vehicle in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reversing those parts convicting defendant of criminalpossession of a controlled substance in the second degree and conspiracy in the second degreeand as modified the judgment is affirmed, and a new trial is granted on counts one and two of theindictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a controlled substance in the second degree (Penal Law § 220.18[1]) and conspiracy in the second degree (§ 105.15) and upon a plea of guilty of aggravatedunlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511[1] [a]). Defendant contends that County Court erred in denying his challenges for cause to fourprospective jurors. We agree with defendant that the court erred with respect to the twoprospective jurors who insisted that defendant should testify. One of those prospective jurors alsorepeatedly stated that she would favor law enforcement and give greater weight to the testimonyof law enforcement witnesses. We conclude that the statements of the two prospective jurors"cast serious doubt on their ability to render a fair verdict under the proper legal standards[, andt]he trial court therefore was required to elicit some unequivocal assurance from the twoprospective jurors that they were able to reach a verdict based entirely upon the court'sinstructions on the law" (People v Bludson, 97 NY2d 644, 646 [2001]). "[N]othing lessthan a personal, unequivocal assurance of impartiality can cure a [prospective] juror's priorindication that [he or] she is predisposed against a particular defendant or particular type of case"(People v Arnold, 96 NY2d 358, 364 [2001]), and the two prospective jurors at issuefailed to offer the requisite "unequivocal assurance of impartiality" (id.). Becausedefendant used all of his peremptory challenges before jury selection was complete, reversal isrequired (see CPL 270.20 [2];People v Linnan, 23 AD3d 1013, 1013-1014 [2005]; People v Russell, 16 AD3d 776, 777 [2005], lv denied 5NY3d 809 [2005]). We therefore modify the judgment by reversing those parts convictingdefendant of criminal possession of a [*2]controlled substance inthe second degree and conspiracy in the second degree, and we grant a new trial on those countsof the indictment.
Although we are hereby granting a new trial, we nevertheless address defendant'sremaining contentions in the interest of judicial economy.We agree with defendant that the court erred in admitting a text message from a cellulartelephone in evidence, inasmuch as the People failed to establish that the text message was everread by defendant, or even retrieved by him, and they failed to establish the authenticity orreliability of the text message (see People v Johnson, 250 AD2d 922, 928-929 [1998],affd 93 NY2d 254 [1999]; see also Prince, Richardson on Evidence §4-203 [Farrell 11th ed]). Further, the court erred in permitting the jury to access the entirecontents of the cellular telephone and to view materials that were not admitted in evidence at trial(see People v Vizzini, 183 AD2d 302, 307-308 [1992]; cf. People v Stanley, 87NY2d 1000 [1996]). Finally, the prejudicial effect of testimony concerning uncharged crimescommitted by defendant, i.e., his past drug sales, as well as his alleged familiarity with task forcevehicles and his alleged threat to kidnap and feed drugs to the District Attorney's children, faroutweighed the probative value of that testimony, and the court therefore erred in admitting thattestimony (see generally People v Alvino, 71 NY2d 233, 241-242 [1987]; People vVentimiglia, 52 NY2d 350, 359-360 [1981]; People v Molineux, 168 NY 264,291-294 [1901]). Present—Martoche, J.P., Centra, Peradotto, Green and Pine, JJ.