| People v Rose |
| 2010 NY Slip Op 04424 [73 AD3d 1091] |
| May 18, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Vincent Rose, Appellant. |
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Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert,J.), rendered August 29, 2008, convicting him of burglary in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Balaz, 43 AD3d 949, 949-950 [2007]; People v Urquidez, 5 AD3d 800,801 [2004]; People v Hirsch, 280 AD2d 612, 613 [2001]). In fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People 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 here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
Nonetheless, the judgment of conviction must be reversed, and a new trial ordered.
CPL 270.20 (1) (b) provides that a prospective juror may be challenged for cause if she or he"has a state of mind that is likely to preclude [her or] him from rendering an impartial verdictbased upon the evidence adduced at the trial." Where an issue is raised concerning the ability ofa prospective juror to be fair and impartial, the prospective juror must state unequivocally thathis or her prior state of mind will not influence his or her verdict, and that he or she will renderan impartial verdict based solely on the evidence (see People v Johnson, 94 NY2d 600,614 [2000]; People v Blyden, 55 NY2d 73, 77-78 [1982]; People v Goodwin, 64 AD3d 790,791 [2009]; People v Hayes, 61AD3d 992, 992-993 [2009]; Peoplev Garrison, 30 AD3d 612, 613 [2006]). "A prospective juror's responses construed as awhole, must demonstrate an 'absolute belief that his [or her] opinion will not influencehis [or her] verdict' " (People v Goodwin, 64 AD3d at 792, quoting People vCulhane, 33 NY2d 90, 107 [1973] [emphasis added]; see People v McQuade, 110NY [*2]284, 301 [1888]).
Here, during voir dire, a prospective juror responded to the trial court's inquiry regardingprior experiences as a crime victim as follows:
"THE PROSPECTIVE JUROR: Yes, sir. I was returning home. I found that my mother, anda neighbor she was friends with, they were found bound and gagged in the apartment that hadbeen burglarized.
"THE COURT: It's an upsetting thing.
"THE PROSPECTIVE JUROR: Yes.Thereafter, the court inquired of the prospective juror:
"[THE COURT:] The most you can do is be fair and impartial, and decide this case on it'sown merits. That's the most we can ask. That's what I'm asking you. Can you put aside yourexperience, as you've described it to us, and be a fair and impartial juror in this case?
"THE PROSPECTIVE JUROR: I can try. I really don't know"(emphasis added).
At no point did the prospective juror unequivocally state that his prior state of mind wouldnot influence his verdict, and that he would render an impartial verdict based solely on theevidence. In this instance, the trial court should have granted the defendant's challenge for causeto that prospective juror (see People v Hayes, 61 AD3d at 993; People v Harris, 14 AD3d 622,623 [2005]). As the People correctly concede, since the defendant exercised a peremptorychallenge to remove the prospective juror and exhausted his allotment of peremptory challengesprior to the completion of jury selection, the judgment of conviction must be reversed and a newtrial ordered (see CPL 270.20 [2]; People v Torpey, 63 NY2d 361, 365 [1984];People v Goodwin, 64 AD3d at 791; People v Hayes, 61 AD3d at 993;People v Harris, 14 AD3d at 623).
The defendant's remaining contentions either are without merit or need not be addressed inlight of our determination. Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.