| People v Campbell |
| 2013 NY Slip Op 07500 [111 AD3d 760] |
| November 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sandino Campbell, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and LaurieK. Gibbons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Honorof, J.), rendered September 21, 2011, convicting him of murder in the seconddegree and criminal possession of a weapon in the second degree (two counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence.
Nonetheless, the judgment must be reversed, and a new trial ordered.
The defendant's contention in his pro se supplemental brief regarding the denial ofdefense counsel's challenge for cause to a prospective juror is unpreserved for appellatereview, as defense counsel failed to challenge the prospective juror on the specificground asserted on appeal (see People v Chatman, 281 AD2d 964 [2001];People v Laverpool, 267 AD2d 93 [1999]; People v Deschamps, 256AD2d 13 [1998]). Nevertheless, under the circumstances of this case, we review thiscontention in the interest of justice (see CPL 470.15 [6] [a]; People v Davis, 19 AD3d1007 [2005]).
CPL 270.20 (1) (b) provides that a prospective juror may be challenged for cause ifthe prospective juror has a state of mind that is likely to preclude him or her fromrendering an impartial verdict based upon the evidence adduced at trial. Where an issueis raised concerning the ability of a prospective juror to be fair and impartial, theprospective juror must state unequivocally that his or her prior state of mind will notinfluence his or her verdict, and that he or she will render an impartial verdict basedsolely on the evidence (seePeople v Borges, 90 AD3d 1067, 1068 [2011]; People [*2]v MacFarlane, 87 AD3d 700, 701 [2011]; People v Rose, 73 AD3d1091, 1092 [2010]; Peoplev Goodwin, 64 AD3d 790 [2009]). A prospective juror's responses, construed asa whole, must demonstrate an absolute belief that his or her prior state of mind will notinfluence his or her verdict (see People v Borges, 90 AD3d at 1068; People vMacFarlane, 87 AD3d at 701; People v Rose, 73 AD3d at 1091).
Here, during voir dire, a prospective juror stated, "[j]ust my upbringing tells me thatthe police saw fit to arrest and the District Attorney saw fit to prosecute, so thatautomatically renders my opinion." The prospective juror never unequivocally stated thathis prior state of mind regarding the police and the District Attorney would not influencehis verdict, and that he would render an impartial verdict based solely on the evidence.His responses as a whole showed that there was doubt as to his ability to be impartial.Therefore, the trial court erred in denying defense counsel's application to discharge thisprospective juror for cause (see People v MacFarlane, 87 AD3d at 701-702;People v Rose, 73 AD3d at 1092-1093; People v Bentz, 232 AD2d 498[1996]; People v Birch, 215 AD2d 573 [1995]; People v Watts, 212AD2d 650 [1995]). Because defense counsel exercised a peremptory challenge againstthis prospective juror, and also exhausted his allotment of peremptory challenges, thiserror cannot be considered harmless (see People v Grant, 297 AD2d 687 [2002];People v Maddox, 175 AD2d 183 [1991]; People v Mentz, 170 AD2d541 [1991]; People v Lawrence, 159 AD2d 518 [1990]).
In light of our determination, we need not reach the defendant's remainingcontentions. Austin, J.P., Sgroi, Cohen and Hinds-Radix, JJ., concur.