| People v Baum |
| 2008 NY Slip Op 06928 [54 AD3d 605] |
| September 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v TyrellBaum, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered December5, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third degree, and sentencinghim, as a second felony drug offender whose prior felony conviction was a violent felony, toconcurrent terms of six years, unanimously affirmed.
After sufficient inquiry, the court properly discharged a sworn juror after she stated that shelived in the neighborhood where the crime and defendant's arrest occurred, and that she wasworried that the possibility of encountering defendant would prevent her from rendering a fairverdict. Although the juror's responses were contradictory, the totality of her statements coupledwith the court's evaluation of her worried demeanor, as specifically described by the court on therecord, established that she was grossly unqualified (see People v Wilson, 295 AD2d 272[2002], lv denied 98 NY2d 714 [2002]; People v Carrasco, 262 AD2d 50 [1999],lv denied 93 NY2d 1015 [1999]). Defendant's procedural claims concerning the trialcourt's resolution of this issue are without merit (see People v Buford, 69 NY2d 290,298-299 [1987]).
The challenged portions of the prosecutor's summation do not warrant reversal (seePeople v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884[1993]). The prosecutor did not improperly vouch for the credibility of the police witnesses.Rather, the prosecutor's remarks were a proper response to defense counsel's credibilityarguments (see People v Sims, 162 AD2d 384, 385 [1990], lv denied 76 NY2d990 [1990]). However, the prosecutor improperly denigrated the integrity of defense counsel bystating that counsel was "speaking out of both sides of her mouth" during summation (seePeople v LaPorte, 306 AD2d 93, 95 [2003]). The prosecutor also improperly shifted theburden of proof to defendant by stating on two occasions that defense counsel "needed" the juryto believe that the People's witnesses were lying, thereby implying "that the jury was entitled toacquit only if it disbelieved the evidence actually presented" (People v Levy, 202 AD2d242, 245 [1994]). Nevertheless, [*2]these improper remarks wereisolated, and any error was harmless in light of the overwhelming evidence of defendant's guilt,which included the recovery of buy money from his person. Concur—Mazzarelli, J.P.,Andrias, Saxe, Friedman and Acosta, JJ.