| People v McGuire |
| 2012 NY Slip Op 08834 [101 AD3d 1386] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Timothy M.McGuire, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered November 30, 2011, upon a verdict convicting defendant of the crimes of course ofsexual conduct against a child in the second degree and sexual abuse in the third degree.
Defendant was a dance teacher and family friend of the victim (born in 1992). In 1998, thevictim began spending the night at defendant's home approximately once a week. The victimeventually revealed that defendant exposed him to pornography and they engaged in mutualmasturbation beginning when the victim was six years old. This activity occurred about 8 to 10times per year in the beginning and tapered off to about two or three times per year, ending whenhe was 15. Following a trial, the jury convicted defendant of course of sexual conduct against achild in the second degree for activity that occurred between January 1999 and April 2005, andsexual abuse in the third degree for an incident in May 2008. County Court sentenced defendantto an aggregate term of five years in prison and 10 years of postrelease supervision. Defendantappeals.
This was a sexual abuse case without any forensic evidence or eyewitnesses other thandefendant and the victim, relegating it to a contest of credibility. Because a different verdictwould not have been unreasonable, we "must, like the trier of fact below, weigh the relative[*2]probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]), while giving great deference "to thefact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor"(People v Bleakley, 69 NY2d 490, 495 [1987]). The victim testified about the mutualmasturbation occurring over a period of approximately nine years, all while he was a minor.Defendant denied ever touching the victim in a sexual manner. He admitted only one incidentwhere the victim, at the age of 14, found a pornographic magazine and began masturbating whiledefendant was in the room, at which point defendant looked at a similar magazine and fondledhimself outside his clothing for two minutes before taking the magazines and putting them away.The victim had previously lied, his descriptions of the incidents contained some inconsistenciesand were vague, and he had some motives to harm defendant. On the other hand, defendant'stestimony also contained inconsistencies, revealed some dishonesty and was partially refuted byother evidence. The jury apparently believed the victim and disbelieved defendant's testimony.Thus, giving deference to those credibility determinations, the verdict is not against the weight ofthe evidence (see People vSapienza, 75 AD3d 768, 769 [2010]; People v Hebert, 68 AD3d 1530, 1531-1532 [2009], lvdenied 14 NY3d 841 [2010]).
Despite the evidentiary basis for the verdict, we reverse and remit for a new trial due toprocedural errors. County Court erred in denying defendant's challenge to a prospective juror.Where a prospective juror's statements raise serious doubts concerning possible bias or theinability to render an impartial verdict, the court must remove that challenged juror for causeunless he or she unequivocally states that he or she can be fair and impartial, set aside any bias,and render a verdict based solely on the evidence (see People v Nicholas, 98 NY2d 749,751-752 [2002]; People v Chambers, 97 NY2d 417, 419 [2002]). Defendant eventuallyexhausted his peremptory challenges, so an erroneous denial of defendant's challenge for causewould constitute reversible error (see CPL 270.20 [2]; People v Nicholas, 98NY2d at 752).
The denial here was erroneous. Defendant contends that a certain prospective juror had a biasagainst homosexuality, although defendant concedes that his argument is based upon confusingquestions and an ambiguity in the juror's answers. The answers could have meant that he wouldnot want his child being taught by a teacher that was a homosexual, or that he would not want hischild in a class with a homosexual teacher who had been accused of molesting a child.[FN1] Although the juror stated that he was "not judging homosexuals" and did not "have anythingagainst homosexuality," his previous answers may have indicated otherwise. In light of thisambiguity and potential bias in a case where a male dance teacher was accused of sexuallyabusing a male student, the burden was on County Court to ask additional questions to "obtain[ ]unequivocal assurances of impartiality" from this juror (People v Nicholas, 98 NY2d at752; see People v Chambers, 97 NY2d at 419). The court did not ask this potential jurorany questions about homosexuality to clarify his ambiguous answers on that topic.
On another topic, the same juror stated that he knows that children do lie, but also stated thatchildren "tell the truth 99% of the time." Upon further questioning, the juror stated that he [*3]would listen to a child witness and decide for himself whether thatchild was telling the truth or lying, but he never disavowed his belief that children almost alwaystell the truth.[FN2] Following these discussions on specific topics, County Court asked this juror whether he wouldbe "willing to base [his] verdict on the evidence?", to which he responded "[y]es." The court alsoasked what would happen if, despite the juror having read something in the newspaper or heardallegations, the People could not prove those allegations. The juror responded, "I can say notguilty." These generic assurances that he would base his verdict on the evidence were insufficientto assure the court of the juror's fairness, considering his statements indicating possible biasagainst homosexuals and his stated belief that children tell the truth virtually all of the time.
An agreement to base a verdict on the evidence, in and of itself, is insufficient where thatevidence may be viewed from the perspective of a person with these biases or predispositions.County Court should have inquired further and more directly on these troubling aspects of thepotential juror's answers. The record does not show that the juror unequivocally expressed anability to be fair and render a verdict based solely on the evidence, after setting asidepreconceived notions or biases. "It is almost always wise for a trial court to err on the side ofdisqualification . . . [because e]ven if a juror is wrongly but not arbitrarily excused,the worst the court will have done in most cases is to have replaced one impartial juror withanother impartial juror" (People v Culhane, 33 NY2d 90, 108 n 3 [1973] [internal citationomitted]). County Court erred in denying defendant's challenge for cause regarding thatprospective juror, entitling defendant to a new trial (see CPL 270.20 [2]; People v Johnson, 17 NY3d 752,753 [2011]; People v Nicholas, 98 NY2d at 752; People v McLean, 24 AD3d 1110, 1111 [2005]).
Reversal is also warranted based on County Court's method of responding to a juror question.In instructing the jurors before sending them home after the first day of deliberations, the courtasked if they had any questions. One juror asked, "What happens if we don't come to aunanimous decision?" Without consulting counsel, the court immediately responded that this wasunlikely, "[i]t would have to take probably a week or two weeks of deliberations before thathappens," and the court had never had to deal with such a situation and was confident the jurycould decide the case. Although defendant did not object to this supplemental jury instruction,the court's failure to consult with counsel prior to responding to the juror's question constituted amode of proceedings error that is not subject to the rules of preservation (see People v Kisoon, 8 NY3d 129,134-135 [2007]). An important purpose of CPL 310.30, which requires the court to give counselnotice of juror requests for further information and discuss the proper response, "is to ensure thatcounsel has the opportunity to be heard before the response is given" (People vO'Rama, 78 NY2d 270, 277 [1991]). "[C]ounsel should be afforded a full opportunity tosuggest appropriate responses . . . [and] the trial court should ordinarily apprisecounsel of the substance of the responsive instruction it intends to give so that counsel can seekwhatever modifications are deemed appropriate before the jury is exposed to thepotentially harmful information" (id. at 278).
County Court did not follow the procedure set forth by the Court of Appeals (see id.at 277-278; accord People v Kisoon, 8 NY3d at 134), as the court did not consult withcounsel or inform them of the intended response. The response was essentially a modifiedAllen charge (see [*4]CJI2d[NY] DeadlockedJury; see generally Allen v United States, 164 US 492 [1896]), but excluded someimportant aspects of such a charge. The charge was not balanced, as it stated that the court hadnever experienced a jury that did not reach a verdict and implied that the jurors would reachunanimity even if it took several weeks of deliberations. This was coercive, in that the jurorswere not informed that, while keeping an open mind and considering the viewpoints of fellowjurors, they must not surrender their conscientiously held beliefs or acquiesce to pressure toarrive at a unanimous verdict (seePeople v Aleman, 12 NY3d 806, 807 [2009]; People v Aponte, 2 NY3d 304, 308-309 [2004]). AlthoughO'Rama refers to written inquiries and suggests that they are preferable (see People vO'Rama, 78 NY2d at 277-278), CPL 310.30 is not limited to written notes. The procedureoutlined in O'Rama applies equally to oral inquiries and should have been utilized here.Hence, County Court erred by failing to consult with counsel prior to issuing a supplementalinstruction and by issuing a version of an Allen charge that was unbalanced and coercive.Defendant's remaining contentions, to the extent not specifically addressed, have been examinedand found to be lacking in merit.
Peters, P.J., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Warren County for a new trial.
Footnote 1: Although County Court laterinterpreted the question as whether the juror would want his child removed from a class with ahomosexual teacher who had actually molested a child, that interpretation is not supported by therecord.
Footnote 2: While the victim was 19 yearsold when he testified at trial, he was between 6 and 15 years old at the times the crimes wereallegedly committed.