| People v Sanchez |
| 2009 NY Slip Op 01690 [60 AD3d 442] |
| March 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Francisco Sanchez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 17,2006, 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 and seventh degrees,and sentencing him, as a second felony drug offender whose prior conviction was a violentfelony, to an aggregate term of seven years, unanimously reversed, on the law, the convictionvacated, and the matter remanded for a new trial.
The court should have granted defendant's challenge for cause to a prospective juror whorepeatedly expressed a predisposition to credit police testimony, since the totality of herresponses established that she would be unable to put aside her inclination and be fair andimpartial (see People v Arnold, 96 NY2d 358, 362 [2001]; compare People v Johnson, 32 AD3d371 [2006], lv denied 7 NY3d 902 [2006]).
In this case involving defendant's alleged sale of narcotics to an undercover narcotics officer,the only police testimony comes from the undercover officer, his ghost and the arresting officer.The prospective juror, whose son is a retired undercover narcotics officer who was shot in theline of duty, repeatedly expressed skepticism that an undercover officer could lie or be mistaken.She also expressed concerns about drugs and violence in her building and neighborhood. Thecourt itself admonished the juror not to "say what you think is a correct answer." At no point didthe juror give an "unequivocal assurance" that she would put aside her beliefs and concerns andrender an impartial verdict based on the evidence (People v Johnson, 94 NY2d 600, 614[2000]) and her assurances, when given, were equivocal and not voiced with conviction(People v Blyden, 55 NY2d 73, 78 [1982]). As the Court of Appeals has said, "the trialcourt should lean toward disqualifying a prospective juror of dubious impartiality, rather thantesting the bounds of discretion by permitting such a juror to serve. It is precisely for this reasonthat so many veniremen are made available for jury service" (People v Branch, 46 NY2d645, 651-652 [1979]).[*2]
Since we are ordering a new trial, we find it unnecessaryto discuss defendant's other arguments. Concur—Tom, J.P., Andrias, Nardelli, Cattersonand Moskowitz, JJ.