| People v Lewis |
| 2010 NY Slip Op 02624 [71 AD3d 1582] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherLewis, Appellant. |
—[*1] Christopher Lewis, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Rachel E. Pilkington of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered September 3, 2008. The judgment convicted defendant, upon a jury verdict, of robberyin the first degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofrobbery in the first degree (Penal Law § 160.15 [4]) and unlawful possession of marihuana(§ 221.05). Defendant contends that Supreme Court erred in denying his challenges forcause to three prospective jurors. We agree with defendant that the court erred with respect totwo of the prospective jurors and thus that reversal is required.
It is well established that, when a prospective juror makes a statement or statements that"cast serious doubt on [his or her] ability to render an impartial verdict" (People vArnold, 96 NY2d 358, 363 [2001]), that prospective juror must be excused for cause unlesshe or she provides an "unequivocal assurance that [he or she] can set aside any bias and renderan impartial verdict based on the evidence" (People v Johnson, 94 NY2d 600, 614[2000]; see People v Nicholas, 98 NY2d 749, 750 [2002]; People v Chambers,97 NY2d 417, 419 [2002]). While no "particular expurgatory oath or 'talismanic' words [arerequired,] . . . jurors must clearly express that any prior experiences or opinionsthat reveal the potential for bias will not prevent them from reaching an impartial verdict"(Arnold, 96 NY2d at 362).
During voir dire, one of the prospective jurors stated that, as a result of her close associationwith police officers in the course of her work as a loss prevention officer, she would "probablytake the word of a cop" over "the word of somebody else." When defense counsel asked thatprospective juror whether she would "tend to give the—the cop the edge on who's tellingthe truth," she responded, "I would lean that way, yes." There is no question that those [*2]statements cast serious doubt on the prospective juror's ability torender an impartial verdict (see Nicholas, 98 NY2d at 751-752; People v Givans,45 AD3d 1460, 1461 [2007]; People v Mateo, 21 AD3d 1392, 1392-1393 [2005]), andthe prospective juror failed to provide "unequivocal assurance that [she could] set aside any biasand render an impartial verdict based on the evidence" (Johnson, 94 NY2d at 614). Theprior collective acknowledgment by the jury panel that the panel members would decide the casesolely on what they heard and saw in the courtroom and not based upon any relationships withlaw enforcement "was insufficient to constitute such an unequivocal declaration" (People vBludson, 97 NY2d 644, 646 [2001]; see Arnold, 96 NY2d at 363).
With respect to the second prospective juror, the record reflects that she expresseduncertainty about her ability to be fair and impartial as a result of her close relationships withmembers of law enforcement. When defense counsel attempted to explore the prospective juror'sapparent reservations, the court precluded any further inquiry on the matter. Although there is noquestion that a trial court "necessarily has broad discretion to control and restrict the scope of thevoir dire examination" (People v Boulware, 29 NY2d 135, 140 [1971], reargdenied 29 NY2d 670 [1971], cert denied 405 US 995 [1972]; see People vHabte, 35 AD3d 1199 [2006]), we conclude under the circumstances of this case that thecourt erred in failing to permit defense counsel to conduct further questioning of the prospectivejuror to determine whether she could provide an "unequivocal assurance" of her ability to rendera fair and impartial verdict, or to excuse the prospective juror for cause (Arnold, 96NY2d at 363; see generally Johnson, 94 NY2d at 616).
Because defendant exhausted all of his peremptory challenges before the completion of juryselection, reversal is required (see CPL 270.20 [2]; Nicholas, 98 NY2d at 752;Givans, 45 AD3d at 1461). We reject the contention of defendant in his main brief thatthe verdict is against the weight of the evidence. Viewing the evidence in light of the elements ofthe crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). In light of our determination, we do not addressdefendant's remaining contentions. Present—Scudder, P.J., Peradotto, Lindley andSconiers, JJ.