| People v Bryant |
| 2012 NY Slip Op 02236 [93 AD3d 1344] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Howard L.Bryant, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedMay 5, 2008. The judgment convicted defendant, upon a jury verdict, of course of sexual conductagainst a child in the second degree, sexual abuse in the second degree and sexual abuse in thethird degree (three counts).
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 upon a jury verdict of,inter alia, course of sexual conduct against a child in the second degree (Penal Law §130.80 [1] [b]). As defendant contends and the People correctly concede, reversal is requiredbecause County Court erred in denying defendant's challenge for cause to a prospective juror."We note at the outset that defendant[, after the challenge at issue was determined,] exhausted hisperemptory challenges, and thus his contention is properly before us" (People v Payne, 49 AD3d 1154,1154 [2008]; see CPL 270.20 [2]; People v Nicholas, 98 NY2d 749, 752 [2002]).
After responding to the court's general questions appropriately, a prospective juror in the firstpass stated that there was a possibility that she would presume that defendant was guilty if hechose not to testify. There was no further questioning of that prospective juror. Consequently, thestatements of that prospective juror "cast serious doubt on [her] ability to render a fair verdictunder the proper legal standards. The trial court therefore was required to elicit some unequivocalassurance from [that] prospective juror[ ] that [she was] able to reach a verdict based entirelyupon the court's instructions on the law. The jury panel's earlier collective acknowledgment thatthey would follow the court's instructions was insufficient to constitute such an unequivocaldeclaration" (People v Bludson, 97 NY2d 644, 646 [2001]). We therefore reverse thejudgment, and we grant a new trial on the indictment.
Defendant failed to preserve for our review his further contention that he was deprived of hisconstitutional right to confront witnesses against him by the court's limitation of hiscross-examination of the victim. "Although . . . defendant [took exception to thecourt's ruling], he did not specify the [constitutional] ground now raised on appeal. Therefore, theissue of whether he [*2]was deprived of his right of confrontationis unpreserved for appellate review" (People v Perez, 9 AD3d 376, 377 [2004], lv denied 3 NY3d710 [2004]; see People v Rivera, 33AD3d 450, 450-451 [2006], lv denied 7 NY3d 928 [2006]). In any event, thatcontention is without merit. " '[C]urtailment [of cross-examination] will be judged improperwhen it keeps from the jury relevant and important facts bearing on the trustworthiness of crucialtestimony' " (People v Smith, 12AD3d 1106, 1106 [2004], lv denied 4 NY3d 767 [2005]; see People v Gross, 71 AD3d1526, 1527 [2010], lv denied 15 NY3d 774 [2010]). Here, however, the court's finalruling permitted defendant to bring out significant details with respect to the victim's prior badacts, and thus it did not constitute an improvident exercise of the court's discretion.
Defendant's remaining contentions are academic in light of our determination.Present—Smith, J.P., Carni, Lindley and Sconiers, JJ.