| People v Rosario-Boria |
| 2013 NY Slip Op 06483 [110 AD3d 1486] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LuisRosario-Boria, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered January 13, 2010. The judgment convicted defendant, upon a jury verdict, ofkidnapping in the second degree and intimidating a victim or witness in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, count four of the superseding indictment is dismissed, and a new trial is grantedon count three of that indictment.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofkidnapping in the second degree (Penal Law § 135.20) and intimidating a victimor witness in the third degree (§ 215.15 [1]), defendant contends that County Courtabused its discretion in refusing to permit him to exercise a peremptory challenge againsta prospective juror. We agree, and we therefore reverse the judgment.
Initially, we reject the contention of the People that defendant failed to preserve thisissue for our review. Defendant specifically sought to exercise a peremptory challengeagainst the prospective juror in question, and the court refused to permit him to do so.Consequently, "the record establishes that 'the trial judge was made aware, before heruled on the issue, that the defense wanted him to rule otherwise, [and thus] preservationwas adequate' " (People v Torres [appeal No. 1], 97 AD3d 1125, 1126 [2012],affd 20 NY3d 890 [2012], quoting People v Caban, 14 NY3d 369, 373 [2010]; seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 493 [2008]).
With respect to the merits, the record establishes that the court directed the attorneysto exercise their challenges in strict order according to the position in which theprospective juror was seated in the jury box for questioning, and the court indicated thatit would not permit the attorneys to return to a prospective juror after the process hadmoved on to the next prospective juror. After several prospective jurors had beenexcused for cause, the court directed the attorneys to exercise their peremptorychallenges to the first group of prospective jurors in the panel. The prosecutor exercisedseveral challenges, followed by defense counsel. As the court began to indicate thenumber of challenges that remained for each side, defense counsel immediately asked ifhe could exercise a peremptory challenge to the prospective juror in [*2]question on appeal. When the court said no, defensecounsel indicated that he had "crossed [the prospective juror's name] out by mistake."The court reiterated that it would not permit the challenge, indicating that it had warnedthe attorneys about adhering to the court's procedures.
"Under these circumstances, 'we can detect no discernable interference or unduedelay caused by [defense counsel's] momentary oversight . . . that wouldjustify [the court's] hasty refusal to entertain [his] challenge,' " and we thus conclude thatthe court's refusal to permit the challenge was an abuse of discretion (People v McGrew, 103 AD3d1170, 1173 [2013]; seePeople v Jabot, 93 AD3d 1079, 1081-1082 [2012]). Inasmuch as "the right toexercise a peremptory challenge against a specific prospective juror is a 'substantial right'. . . , reversal is mandated" (Jabot, 93 AD3d at 1081-1082; seeMcGrew, 103 AD3d at 1173; cf. People v Williams, 107 AD3d 1391, 1393 [2013]).
We further agree with defendant that the conviction under count four, i.e.,intimidating a victim or witness in the third degree, is not supported by legally sufficientevidence. We therefore dismiss that count of the superseding indictment and grant a newtrial only with respect to count three, charging kidnapping in the second degree. ThePeople presented evidence at trial establishing that defendant approached the witness in agrocery store and said, "I'm not that stupid as you may think." There was no evidencetending to support the inference that defendant's statement was a threat intended toprevent the witness from communicating with the police, the courts or the grand jury, andthe evidence therefore is legally insufficient to support the conviction with respect to thatcount (see Penal Law § 215.15 [1]; see generally People v Oberlander, 60 AD3d 1288,1289-1291 [2009]).
Contrary to defendant's further contention, the court properly denied his request for ajury charge on the justification defense in Penal Law § 35.05, and instead chargedthe jury on the affirmative defense of duress. "Here, . . . the only defenseraised was that defendant lacked the requisite intent to commit [kidnapping] and wasacting out of fear of the [kidnappers], who had threatened him with a gun. The onlytheory of the defense [was] duress, and 'there is simply no basis for justifying defendant'sconduct by any other standard' " (People v Crumpler, 242 AD2d 956, 958[1997], lv denied 91 NY2d 871 [1997], quoting People v Magliato, 68NY2d 24, 31 [1986]).
In light of our determination, we do not address defendant's remaining contentions.Present—Smith, J.P., Fahey, Sconiers, Valentino and Whalen, JJ.