| People v Lapage |
| 2008 NY Slip Op 10071 [57 AD3d 1233] |
| December 24, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ronald Lapage,Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Craig P. Carriero of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Franklin County (Richards, J.),rendered April 20, 2006, upon a verdict convicting defendant of the crime of course of sexual conductagainst a child in the first degree.
Defendant was charged in an indictment with course of sexual conduct against a child in the firstdegree based upon allegations that he engaged in two or more acts of sexual conduct with hiseight-year-old daughter. Following a jury trial, defendant was convicted as charged and sentenced to aterm of imprisonment of 15 years to be followed by five years of postrelease supervision. Defendantnow appeals and we reverse.
Initially, we reject defendant's contention that the verdict was against the weight of the evidence. Inreviewing the weight of the evidence, we must determine whether "a different finding would not havebeen unreasonable" and, if not "then [we] must, like the trier of fact below, 'weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Romero, 7 NY3d 633,643-644 [2006]). Moreover, this review is not limited solely to a determination of credibility issues; wealso "must consider the elements of the crime, for even if the prosecution's witnesses were credible theirtestimony [*2]must prove the elements of the crime beyond areasonable doubt" (People v Danielson,9 NY3d 342, 349 [2007]).
In order to prove course of sexual conduct against a child in the first degree, the People mustestablish, as relevant here, that a defendant "over a period of time not less than three months induration[,] . . . engage[d] in two or more acts of sexual conduct, [including] at least oneact of . . . oral sexual conduct . . . with a child less than [11] years old"(Penal Law § 130.75 [1] [a]). Considering the evidence in a neutral light—particularly thevictim's detailed description of defendant's conduct toward her during visitation with him from March orApril 2004 through August 2004—and according deference to the jury in assessing witnesscredibility, it cannot be said that the verdict was against the weight of the evidence (see People vBleakley, 69 NY2d at 495; People vNowinski, 36 AD3d 1082, 1083-1084 [2007], lv denied 8 NY3d 989[2007]).[FN*]
We do agree, however, with defendant's contention that County Court committed reversible errorin dismissing a sworn juror. "If at any time after the trial jury has been sworn and before the rendition ofits verdict, . . . the court finds, from facts unknown at the time of the selection of the jury,that a juror is grossly unqualified to serve in the case . . . the court must discharge suchjuror" (CPL 270.35 [1]). A sworn juror may be discharged as grossly unqualified over a defendant'sobjection only when, after the trial court conducts a probing inquiry and assesses the knowledgeacquired by the juror and its importance and bearing on the case, " 'it becomes obvious that [the] jurorpossesses a state of mind which would prevent the rendering of an impartial verdict' " (People vBuford, 69 NY2d 290, 298 [1987] [citation omitted]; see People v Harris, 99 NY2d202, 212-213 [2002]). Furthermore, "[i]n concluding that a juror is grossly unqualified, the court maynot speculate as to possible partiality of the juror based on her [or his] equivocal responses" but"[i]nstead, it must be convinced that the juror's knowledge will prevent her [or him] from rendering animpartial verdict" (People v Buford, 69 NY2d at 299; see People v Chambers, 97NY2d 417, 419 [2002]; People v Cargill, 70 NY2d 687, 688-689 [1987]).
Here, the juror in question informed County Court that he recognized defendant's mother, whotestified at trial, as a person who had purchased some geese from his farm two years earlier. CountyCourt inquired if this experience would affect the juror's ability to be fair and impartial in rendering averdict, to which he replied, "I don't think so." When asked if he could assure the parties that he couldboth consider the witness's credibility and decide the case without referring to the prior experience, hereplied, "I think so." County Court thereafter dismissed the juror over defendant's objection.
In our view, County Court's conclusion that the juror would not be able to impartially evaluate thewitness's testimony based on the limited inquiry held here was speculative (see People vAnderson, 70 NY2d 729, 730 [1987]; People v Cargill, 70 NY2d at 688-689;People v Buford, 69 NY2d at 299-300; People v West, 92 AD2d 620, 622 [1983,Mahoney, P.J., dissenting], revd on dissenting op of Mahoney, P.J., 62 NY2d 708 [1984]).The juror's statements, taken as a whole, were not equivocal regarding his ability to be fair and impartial(see People v Chambers, 97 NY2d at 419). In any event, the brief face-to-face encounterbetween the juror and the witness two years prior to the trial does not "constitute such a closerelationship of a [*3]business or personal nature as to render the jurorgrossly unqualified to continue serving in the case" (People v Telehany, 302 AD2d 927, 928[2003]). Accordingly, dismissal of the sworn juror under the circumstances presented herein depriveddefendant of his right to a fair trial, and reversal is required.
In anticipation of a new trial, we address defendant's remaining claims to the extent that they arepreserved and not otherwise rendered academic by our determination. Contrary to defendant'scontention, considering the victim's age and her testimony that she was warned by defendant not to tellanyone, her report to her mother constituted a prompt outcry. Thus, the mother's testimony concerningthe victim's revelations was properly admitted as an exception to the hearsay rule (see People v Stuckey, 50 AD3d 447,448 [2008], lv denied 11 NY3d 742 [2008]; Matter of Gregory AA., 20 AD3d 726, 727-728 [2005]; People vVanterpool, 214 AD2d 429, 430 [1995], lv denied 86 NY2d 875 [1995]). Finally, weare unpersuaded by defendant's assertion that County Court erred in allowing the prosecutor tocross-examine a witness about her knowledge of prior bad acts committed by defendant. Defendant'switness testified that she never had a concern when defendant was with her children, which opened thedoor for cross-examination regarding her knowledge of reports of child abuse concerning defendant(see People v Tuckerman, 134 AD2d 732, 733 [1987]; see generally People v Kuss,32 NY2d 436, 443 [1973], cert denied 415 US 913 [1974]; People v Nicosia, 18 AD3d 673, 673[2005]).
Carpinello, Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is reversed, on thelaw, and matter remitted to the County Court of Franklin County for a new trial.
Footnote *: As conceded by defendant, hischallenge to the legal sufficiency of the evidence was not properly preserved.