| People v McClary |
| 2011 NY Slip Op 04928 [85 AD3d 1622] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony D.McClary, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Frank A. Seminerio of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJanuary 11, 2010. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a controlled substance in the third degree and criminal sale of a controlled substance in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand as a matter of discretion in the interest of justice and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1])and criminal sale of a controlled substance in the third degree (§ 220.39 [1]). We agreewith defendant that reversal is required on the ground that County Court improperly removed asworn juror who was not shown to be grossly unqualified to serve in the case (CPL 270.35 [1];see generally People v Buford, 69 NY2d 290, 297-298 [1987]). Here, a prosecutionwitness indicated that he had met the juror in question on two prior occasions, i.e., at a party atsomeone's home and at the apartment of the witness, when the juror was performing maintenancework there. The court questioned the juror with respect to the circumstances of those allegedmeetings, but the juror could not recall having had any prior connection with the witness. Thecourt nonetheless dismissed the juror, over defendant's objection, on the ground that the juror"may or may not know that [the juror] ha[s] had some kind of contact with one of the witnesses,and so [the juror was] not put in any kind of spot and we are not put in any kind of spot, we'll justexcuse [him]." "[W]hile a trial court should lean toward disqualifying a prospective juror ofdubious impartiality when [such prospective] juror is challenged for cause under CPL 270.20 (1)(b) . . . , the standard for disqualifying a sworn juror over defendant's objection (i.e.,grossly unqualified) is satisfied only when it becomes obvious that a particular juror possesses astate of mind which would prevent the rendering of an impartial verdict" (Buford, 69NY2d at 298 [internal quotation marks omitted]). We are unable to conclude on this record thatthere was a basis for the court to have been "convinced" that the juror was grossly unqualified toserve in the case (id. at 299; see CPL 270.35 [1]; People v Telehany, 302AD2d 927, 928 [2003]). Inasmuch as the erroneous dismissal of a sworn juror is not subject toharmless error analysis, reversal is required (see People v Anderson, 70 NY2d 729, [*2]730-731 [1987]).
Defendant further contends that reversal is also warranted based upon specified instances ofprosecutorial misconduct. We agree with defendant that the cumulative effect of those instancesrequires reversal. As defendant correctly notes, the prosecutor improperly "elicited testimonyfrom [detectives] who vouched for the credibility of the confidential informant by testifying thatthe confidential informant had provided reliable information to the police in the past" (People v Fredrick, 53 AD3d 1088,1088 [2008]; see People v Slaughter, 189 AD2d 157, 160 [1993], lv denied 81NY2d 1080 [1993]). He also improperly elicited testimony regarding defendant's postarrestsilence during the People's case-in-chief, in violation of defendant's right againstself-incrimination, an error that he compounded by explicitly referencing defendant's postarrestsilence during summation (see generally People v Basora, 75 NY2d 992, 993-994[1990]). Finally, the prosecutor further engaged in misconduct by "forcing defendant oncross-examination to characterize [the] prosecution witnesses as liars" (People v Holden,244 AD2d 961, 961 [1997], lv denied 91 NY2d 926 [1998]; see People vEdwards, 167 AD2d 864 [1990], lv denied 77 NY2d 877 [1991]). Althoughdefendant failed to preserve his contention for our review (see CPL 470.05 [2]), weexercise our power to review it as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]; Fredrick, 53 AD3d at 1088). In light of our determination that reversal isrequired on two separate grounds, we need not address defendant's remaining contentions.Present—Smith, J.P., Centra, Fahey, Gorski and Martoche, JJ.