| Matter of State of New York v Kalchthaler |
| 2011 NY Slip Op 02257 [82 AD3d 1672] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v CharlesKalchthaler, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Michael Connolly of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Onondaga County (William D. Walsh, A.J.),entered November 17, 2009 in a proceeding pursuant to Mental Hygiene Law article 10. Theorder, among other things, committed respondent to a secure treatment facility.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and a new trial is granted.
Memorandum: On appeal from an order determining that he is a dangerous sex offenderrequiring confinement pursuant to Mental Hygiene Law article 10 and committing him to asecure treatment facility, respondent contends that Supreme Court erred in denying his challengefor cause to a prospective juror. We agree. We note at the outset that challenges to the juryimpanelment procedures in Mental Hygiene Law article 10 proceedings implicate a respondent'sfundamental right to a jury trial (seeMatter of State of New York v Muench, 68 AD3d 1677 [2009]; see generallyMental Hygiene Law § 10.07 [b]), and the procedure set forth in CPL 270.20 governingchallenges for cause in a criminal trial applies here (see Mental Hygiene Law §10.07 [b]). Pursuant to that procedure, when a prospective juror makes statements that castserious doubt on his or her ability to render an impartial verdict, that juror must be excused forcause unless the juror provides an "unequivocal assurance that [he or she] can set aside any biasand render an impartial verdict based on the evidence" (People v Johnson, 94 NY2d 600,614 [2000]). We agree with respondent that the prospective juror in question did not providesuch an unequivocal assurance and thus that respondent should not have had to use a peremptorychallenge with respect to that prospective juror (see id. at 614-615). Inasmuch asrespondent exhausted all of his peremptory challenges before the completion of jury selection,reversal is required (see CPL 270.20 [2]; cf. People v Lynch, 95 NY2d 243, 248[2000]). In light of our determination, we do not address respondent's remaining contentions.Present—Scudder, P.J., Centra, Sconiers, Gorski and Martoche, JJ.