| People v Porter |
| 2010 NY Slip Op 07369 [77 AD3d 771] |
| October 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CarlinPorter, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Robert A. Schwartz, andJason P. Weinstein of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Ayres, J.),rendered January 11, 2008, convicting him of manslaughter in the first degree, criminal possession of aweapon in the second degree, and criminal possession of a weapon in the third degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, a new trial is ordered on the charges of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the third degree,and the indictment is otherwise dismissed with leave to the People to re-present any appropriatecharges to another grand jury (see People v Beslanovics, 57 NY2d 726, 727 [1982]).
During deliberations, and after the alternate jurors had been excused, one of the sworn jurors senta note to the Supreme Court explaining that he had an upcoming court appearance before anotherjudge within the same county which could possibly interfere with his jury service depending on when averdict was reached. The Supreme Court informed the parties that, upon receiving this note, it searchedthe juror's name in a public database on the Office of Court Administration Web site and discoveredthat the juror had a pending charge for assault in the second degree. The Supreme Court noted that thejuror did not disclose this information during voir dire despite being specifically asked if he, or anyrelative or close friend, had ever been accused of a crime.
The Supreme Court proceeded to conduct an inquiry of this juror in the presence of the attorneysand the defendant. During this inquiry, the juror explained that he did not respond affirmatively to thequestion posed by the Supreme Court with respect to whether he had ever been accused of a crimebecause the District Attorney's office had agreed to reduce the charge to a violation. Having receivedthis explanation, the Supreme Court simply asked the juror whether he could render a fair and impartialverdict despite this pending matter, to which the juror responded affirmatively.
Thereafter, the defendant moved for a mistrial on the ground that the juror was grossly unqualifiedto serve because he was receiving a favorable plea agreement from the District Attorney's office.Without placing its reasoning on the record, the Supreme Court denied the defendant's motion. Thedefendant contends that the Supreme Court erred in denying his motion for a mistrial. We agree.
CPL 270.35 (1) provides that "[i]f at any time after the trial jury has been sworn and before therendition of its verdict . . . the court finds, from facts unknown at the time of the selectionof the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of asubstantial nature . . . the court must discharge such juror." (CPL 270.35 [1].) "If noalternate juror is available, the court must declare a mistrial" (id.). The "grossly unqualified"standard "is satisfied only when it becomes obvious that a particular juror possesses a state of mindwhich would prevent the rendering of an impartial verdict" (People v Buford, 69 NY2d 290,298 [1987] [internal quotation marks omitted]; see People v Tin P. Chu, 8 AD3d 399 [2004]; People v Whyte,282 AD2d 629, 630 [2001]). In making such a determination, "the trial court must question eachallegedly unqualified juror individually in camera in the presence of the attorneys and defendant"(People v Buford, 69 NY2d at 299), conducting "a 'probing and tactful inquiry' into the 'uniquefacts' of each case, including a careful consideration of the juror's 'answers and demeanor' " (Peoplev Rodriguez, 71 NY2d 214, 219 [1988], quoting People v Buford, 69 NY2d at 299)."The trial court's reasons for its ruling should be placed on the record . . . [and] the courtmay not speculate as to possible partiality of the juror" (People v Buford, 69 NY2d at 299;see People v Rodriguez, 71 NY2d at 219; People v Whyte, 282 AD2d at 630).
Here, the inquiry conducted by the Supreme Court fell short of that required by Buford.Once the juror explained that the District Attorney's office had agreed to reduce his pending felonycharge to a violation, the Supreme Court's inquiry should have been more probing, focusing on whetherthis purported agreement would render him biased in favor of, or against, the People (see People vDotson, 248 AD2d 1004 [1998]; People v Thomas, 196 AD2d 462, 464-465 [1993];cf. People v Kimes, 37 AD3d 1,23-24 [2006]; People v Tanner, 220 AD2d 468 [1995]). Since the Supreme Court failed tomake any inquiry into the juror's relationship with the District Attorney's office stemming from thispending case, its determination that the juror was not grossly unqualified to serve was based onspeculation (see generally People v Whyte, 282 AD2d 629 [2001]; People vRuggiero, 279 AD2d 538 [2001]; People v Dotson, 248 AD2d 1004 [1998]; Peoplev Levy, 213 AD2d 427 [1995]; People v Vinson, 143 AD2d 702, 703 [1988]).Additionally, the Supreme Court erred in failing to place the reasons for its ruling on the record (seePeople v Buford, 69 NY2d at 299). As the error is not subject to harmless error analysis, theconviction must be reversed (see People v Anderson, 70 NY2d 729, 730 [1987]; Peoplev Levy, 213 AD2d at 428; People v Jones, 210 AD2d 430, 431 [1994]; People vVelasquez, 167 AD2d 364, 365 [1990]). Accordingly, we reverse the judgment and order a newtrial on counts two and three of the indictment, charging criminal possession of a weapon in the seconddegree and criminal possession of a weapon in the third degree, respectively. Inasmuch as thedefendant was convicted of manslaughter in the first degree, the lesser-included offense under countone of the indictment, we dismiss that count with leave to the People to re-present any appropriatecharges to another grand jury (see People v Gonzalez, 61 NY2d 633 [1983]; People vBeslanovics, 57 NY2d 726, 727 [1982]; People v Brockett, 74 AD3d 1218, 1220-1221 [2010]; People v Rodriguez, 69 AD3d 143[2009]).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion ingranting the People's application to amend the indictment so as to reflect the proper subdivision of therecently amended Penal Law § 265.03 (see CPL 200.70), and in admitting intoevidence certain autopsy photographs.
The defendant's contention raised in point two (A) of his supplemental pro se brief is not preservedfor appellate review (see CPL 470.05 [2]). The defendant's remaining contentions have beenrendered academic in light of our determination. Mastro, J.P., Chambers, Roman and Sgroi, JJ.,concur.