| People v Weber |
| 2013 NY Slip Op 01103 [103 AD3d 822] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Israel Weber, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and LindaBreen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Guzman, J.), rendered January 5, 2010, convicting him of assault in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Criminal Procedure Law § 270.20 (1) (b) provides that a party may challenge aprospective juror for cause if the juror "has a state of mind that is likely to preclude him[or her] from rendering an impartial verdict based upon the evidence adduced at thetrial." Upon such a challenge for cause, a juror who has revealed doubt about his or herability to serve impartially must be excused unless the juror states unequivocally on therecord that he or she can be fair (see People v Arnold, 96 NY2d 358, 362 [2001];People v Johnson, 94 NY2d 600, 615 [2000]; People v Blyden, 55 NY2d73, 78 [1982]; People vBorges, 90 AD3d 1067 [2011]; People v MacFarlane, 87 AD3d 700, 701 [2011]). Aprospective juror's responses, construed as a whole, must demonstrate an "absolutebelief that his [or her] opinion will not influence his [or her] verdict' " (People v Goodwin, 64 AD3d790, 792 [2009], quoting People v Culhane, 33 NY2d 90, 107 [1973]).
Here, during voir dire, in response to questions from defense counsel, the prospectivejuror at issue stated that she could be "fair," but also stated that if she were on trial shewould not want herself on a jury because "I don't think that I would be fair." Althoughthe prospective juror stated that she would "follow the law," as instructed by the court,she did not unequivocally state that she would be impartial. Once the prospective jurorexpressed doubt regarding her ability to be impartial, it was incumbent upon the court toascertain that she would render an impartial verdict based on the evidence (see Peoplev Arnold, 96 NY2d 358 [2001]; People v Borges, 90 AD3d 1067 [2011]; People v Goodwin, 64 AD3d790 [2009]; People v Yattang Ng, 298 AD2d 470, 471 [2002]). This was notdone. As a result, the Supreme Court erred in denying the defendant's challenge for causeto the prospective juror. The failure to grant the defendant's challenge for causeconstituted reversible error because the defendant exhausted all of his peremptorychallenges prior to the completion of jury selection (see CPL 270.20 [2];People v Torpey, 63 NY2d 361, 365 [1984]; People v Borges, 90 AD3dat 1068; People v MacFarlane, 87 AD3d at 702; People v Goodwin, 64AD3d at 791). Dillon, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.