| People v Arena |
| 2010 NY Slip Op 01660 [70 AD3d 1044] |
| February 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Vincent Arena, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B.Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.),rendered September 29, 2008, convicting him of murder in the second degree and falselyreporting an incident in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
During the course of the trial, the victim's father had an emotional outburst in front of thejury during the testimony of a prosecution witness. The jury was immediately taken out of thecourtroom. The court denied defense counsel's request that an inquiry of each juror be conductedin camera. The court then conducted an inquiry of each juror individually in open court in thepresence of the attorneys and the defendant with approximately 100 spectators in the courtroom,including members of both the victim's family and the defendant's family, to determine whethereach juror could still render a fair and impartial verdict. This inquiry resulted in the discharge ofone juror. Defense counsel then moved for a mistrial, and the court denied the motion.
Two days later, the Supreme Court was informed by a court officer that one or more jurorshad expressed concern for their safety in having to provide their full names during the inquiry inopen court. The Supreme Court then conducted an individualized inquiry of each juror in camerato determine if each juror could still render a fair and partial verdict. The court was satisfied thateach juror could render a fair verdict. Defense counsel renewed his motion for a mistrial, whichwas denied. The defendant contends that the Supreme Court's failure to conduct the first inquiryin camera constituted reversible error. We disagree.
CPL 270.35 (1) provides that "[i]f at any time after the trial jury has been sworn and beforethe rendition of its verdict . . . the court finds, from facts unknown at the time of theselection of the jury, that a juror is grossly unqualified to serve in the case . . . thecourt must discharge such juror." The "grossly unqualified" standard "is satisfied only when itbecomes obvious that a particular juror possesses a state of mind which would prevent therendering of an impartial verdict" (People v Buford, 69 NY2d 290, 298 [1987] [internalquotation marks omitted]). In [*2]making such a determination,"the trial court must question each allegedly unqualified juror individually in camera in thepresence of the attorneys and defendant" (People v Buford, 69 NY2d at 299; seePeople v Rodriguez, 71 NY2d 214, 219 [1988]; People v Levy, 213 AD2d 427,427-428 [1995]; People v Thomas, 196 AD2d 462, 464 [1993]). "[T]his proceedingshould be a 'probing and tactful inquiry' into the 'unique facts' of each case, including a carefulconsideration of the juror's 'answers and demeanor' " (People v Rodriguez, 71 NY2d at219, quoting People v Buford, 69 NY2d at 299).
Here, although the Supreme Court initially failed to conduct an in camera inquiry of thejurors on the day that the victim's father's outburst occurred, the Supreme Court did follow theguidelines set forth in People v Buford (69 NY2d at 299) by determining, as to eachjuror, whether he or she was "grossly unqualified," when it conducted its second inquiry of thejurors in camera pursuant to CPL 270.35. During that second inquiry, the Supreme Courtproperly conducted "a probing and tactful inquiry" of each juror individually in camera in thepresence of the attorneys and the defendant (69 NY2d at 299; see People v Rodriguez,71 NY2d at 219; cf. People v Ruggiero, 279 AD2d 538 [2001]). Thus, the SupremeCourt's second inquiry of the jurors conducted in compliance with People v Buford curedany error by the Supreme Court in failing to initially inquire of the jury solely in the presence ofcounsel and the defendant.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 349 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe their demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The Supreme Court providently exercised its discretion in denying the defendant's motionfor a mistrial made during the cross-examination of a prosecution witness. The decision whetherto grant a motion for a mistrial "rests within the sound discretion of the trial court which is in thebest position to determine if [a mistrial] is truly necessary to protect the defendant's right to a fairtrial" (People v Cooper, 173 AD2d 551, 552 [1991] [citations omitted]; see People vWhitely, 41 AD3d 622, 623 [2007]). Although one of the prosecution's witnessesspontaneously testified, on cross-examination, that he passed a polygraph test, the SupremeCourt struck the testimony and issued a curative instruction directing the jury to disregard thewitness's response. Under these circumstances, the court's prompt curative instruction eliminatedany prejudice to the defendant, and reversal is unwarranted (see People v Jackson, 198AD2d 436 [1993]; People v Young, 186 AD2d 699, 700 [1992]; see generally Peoplev Benloss, 60 AD3d 686, 687 [2009]; People v Jackson, 59 AD3d 637, 638 [2009]).
Additionally, the Supreme Court properly denied the defendant's motion for a mistrialrelating to an improper comment made by the prosecutor during the cross-examination of adefense witness, since any alleged prejudice to the defendant was cured when the Supreme Courtinstructed the jury to disregard the comment and admonished the prosecutor in the presence ofthe jury (see People v Kowalewski, 39 AD3d 770, 771 [2007]; People v Misla, 2AD3d 651, 652 [2003]).
The defendant's contention that various comments made by the prosecutor during hissummation were improper is unpreserved for appellate review, as the defendant either did notobject to the remarks at issue or made only general objections, or his objections were sustainedwithout any further request for curative instructions, and he failed to move for a mistrial on thespecific grounds he now asserts on appeal (see People v Philbert, 60 AD3d 698, 699[2009]; People v Dashosh, 59 AD3d 731 [2009]; People v Boyce, 54 AD3d1052, 1053 [2008]). In any event, all of the challenged remarks constituted fair comment on theevidence or were responsive to defense counsel's summation (see People v Philbert, 60AD3d at 699; People v Nisvis, 56 AD3d 574 [2008]; People v Crawford, 54AD3d 961, 962 [2008]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Leventhal, Belen andAustin, JJ., concur.