| People v Payne |
| 2008 NY Slip Op 02227 [49 AD3d 1154] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ivory L.Payne, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered April 12, 2006. The judgment convicted defendant, upon a jury verdict, of assault in thefirst degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, assault in the first degree (Penal Law § 120.10 [1]). We agree with defendantthat Supreme Court erred in denying his challenge for cause with respect to a prospective jurorand that reversal is required based on that error. We note at the outset that defendant thereafterexhausted his peremptory challenges, and thus his contention is properly before us (seeCPL 270.20 [2]; People v Nicholas, 98 NY2d 749, 752 [2002]).
After initially providing appropriate responses to questions posed by the court and theprosecutor, the prospective juror in question made equivocal statements in response toquestioning by defense counsel. Specifically, the prospective juror stated that there was apossibility that her experiences and sensitivity to violence would affect her response totestimony, and that she questioned whether she would be a good juror for the case. There was nofurther questioning of that prospective juror after she made those equivocal statements.
It is well settled that a prospective juror "who has revealed doubt, because of priorknowledge or opinion, about her ability to serve impartially must be excused unless the[prospective] juror states unequivocally on the record that she can be fair" (People vArnold, 96 NY2d 358, 362 [2001]; see People v Bludson, 97 NY2d 644, 646[2001]). "Indeed, nothing less than a personal, unequivocal assurance of impartiality can cure a[prospective] juror's prior indication that she is predisposed against a particular defendant orparticular type of case" (Arnold, 96 NY2d at 364). Here, the responses of the prospectivejuror to questioning by defense counsel called her impartiality into question, and she did not"thereafter g[i]ve the requisite unequivocal assurances that her prior state of mind would notinfluence her verdict and that she could be fair and impartial" (People v Linnan, 23 AD3d 1013,1014 [2005]; see generally People v Nicholas, 98 [*2]NY2d 749, 751-752 [2002]).
Contrary to defendant's further contentions, the evidence is legally sufficient to support theconviction, and the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). In view of our determination, we do not addressdefendant's remaining contentions. Present—Hurlbutt, J.P., Martoche, Smith, Lunn andPeradotto, JJ.