| People v Hayes |
| 2009 NY Slip Op 03536 [61 AD3d 992] |
| April 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marcus Hayes, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and EdwardD. Saslaw of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGuire,J.), rendered August 4, 2005, convicting him of criminal possession of a forgery device (threecounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's challenge to the legal sufficiency of the evidence, raised in his supplementalpro se brief, is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484[2008]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention in his supplemental pro se brief that the verdict was repugnant iswithout merit (see People v Johnson, 70 NY2d 819, 820 [1987]; People v Tucker,55 NY2d 1039 [1982]; People v[*2]Ferguson, 55 AD3d 926 [2008]; People vOyekoya, 278 AD2d 253 [2000]).
CPL 270.20 (1) (b) permits a party to challenge a prospective juror "for cause" if he or she"has a state of mind that is likely to preclude him [or her] from rendering an impartial verdictbased on the evidence adduced at trial." Upon such a challenge, "a juror who has revealed doubt,because of prior knowledge or opinion, about [his or] her ability to serve impartially must beexcused unless the juror states unequivocally on the record that [he or] she can be fair"(People v Arnold, 96 NY2d 358, 362 [2001]; see People v Bludson, 97 NY2d644, 645 [2001]; People v Russell,13 AD3d 655, 656 [2004]). "If there is any doubt about a prospective juror'simpartiality, trial courts should err on the side of excusing the juror, since at worst the court willhave 'replaced one impartial juror with another' " (People v Arnold, 96 NY2d at 362,quoting People v Culhane, 33 NY2d 90, 108 n 3 [1973]; see People v Kenner, 8 AD3d296, 297 [2004]).
Here, during the course of voir dire, one prospective juror indicated that she did not know ifshe could be fair and impartial considering that she had been the victim of an identity theft, acrime similar in nature to the one being tried. In addition, another juror expressed doubt as towhether she could get past her prejudices. In both of these instances, the court should havegranted the defendant's challenges for cause (see People v Garrison, 30 AD3d 612 [2006]; People v Harris, 14 AD3d 622[2005]). Since the defendant exercised peremptory challenges to remove both prospective jurorsand exhausted his allotment of peremptory challenges prior to the completion of jury selection,the convictions must be reversed and a new trial ordered (see CPL 270.20 [2]; Peoplev Torpey, 63 NY2d 361 [1984]). Mastro, J.P., Dillon, Covello and Dickerson, JJ., concur.