| People v Jones |
| 2007 NY Slip Op 09443 [45 AD3d 1178] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Randy L.Jones, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (John Healy, Law Intern), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County (Cortese,J.), rendered February 11, 2006, upon a verdict convicting defendant of the crimes of aggravatedunlicensed operation of a motor vehicle in the first degree and driving while ability impaired, andthe traffic infraction of speeding.
Defendant was stopped for speeding and, as the police officer approached the vehicle, hedetected the odor of alcohol. Defendant acknowledged to the officer that his license had beenrevoked because of a conviction for driving while intoxicated. According to the officer,defendant failed field sobriety tests. He was indicted on charges of driving while intoxicated as afelony, aggravated unlicensed operation of a motor vehicle in the first degree and speeding.Following a jury trial, he was convicted of the lesser included offense of driving while abilityimpaired, aggravated unlicensed operation of a motor vehicle in the first degree and speeding.Defendant appeals.
We reverse and remit the matter for a new trial on counts 2 and 3. Although we disagree withdefendant's contention that the evidence was not legally sufficient to support the convictions, weagree with his argument that County Court erred in denying his challenge for cause toprospective juror No. 101. "Prospective jurors who make statements that cast serious [*2]doubt on their ability to render an impartial verdict, and who havegiven less-than-unequivocal assurances of impartiality, must be excused" (People vArnold, 96 NY2d 358, 363 [2001] [citations omitted]; see People v Nicholas, 98NY2d 749, 750 [2002]). Here, prospective juror No. 101 knew both of the officers involved indefendant's arrest and the credibility of those officers was an important issue at the trial. Thefollowing exchange occurred between defense counsel and prospective juror No. 101:
"[Defense Counsel]: You know both of the officers involved?
"Prospective juror: Yes . . .
"[Defense Counsel]: Nothing personal. But in adjudging the evidence in this case. . . , do you think there's some leeway that you might give the police officers basedupon the fact that you know these guys? . . .
"Prospective juror: Probably. There's a possibility. I mean, I think it may be a question ofcredibility before it even starts. . . .
"[Defense Counsel]: Okay.
"Prospective Juror: So there would probably be a point where I might, you know, assumecredibility on their part."
Shortly thereafter, County Court gave the general instruction that a police officer's testimonyshould not be treated differently than any other witness. However, the record contains no directresponse by juror No. 101 agreeing to abide by this instruction, nor is there any other unequivocalassurance of impartiality by juror No. 101 made after he had indicated a potential bias as to theofficers' credibility and testimony. Defendant's challenge for cause of juror No. 101 was denied,defendant exercised a peremptory challenge as to that juror and eventually used all hisperemptory challenges. Under such circumstances, reversal is required (see People vNicholas, 98 NY2d at 750-752; People v Holmes, 302 AD2d 936, 936 [2003]; see also People v McLean, 24 AD3d1110, 1111 [2005]).
Given our conclusion, there is no need to address the remaining issues asserted by defendant.
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Schenectady County for a newtrial.