| People v Otigho |
| 2014 NY Slip Op 00128 [113 AD3d 637] |
| January 8, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Otigho, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andRhea A. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered March 2, 2011, convicting him of attempted assault in the firstdegree, upon a jury 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, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibilityto conduct 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]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The trial court providently exercised its discretion in denying the defendant's requestfor a missing witness charge. The defendant failed to demonstrate that the witness wasavailable and under the People's control (see People v Gonzalez, 68 NY2d 424,427-431 [1986]; People vStewart, 96 AD3d 880, 881 [2012]).
Nevertheless, reversal is required based upon defense counsel's absence from an incamera interview with a sworn juror and the court's subsequent failure to disclose to thedefense what that juror stated during the interview. The juror reported that a third partyhad told him that the defendant had an "aggressive demeanor," was a "little wild," was"somebody you don't mess around with," and was someone he "should avoid." The trialcourt, in discharging the juror, merely told defense counsel that this juror had lied to thecourt and, thus, was grossly unqualified to continue serving pursuant to CPL 270.35.
"[A]n inquiry to determine the existence and extent of prejudice affecting the gross[*2]disqualification of a sworn juror . . . isinextricably related to defendant's entitlement to a fair hearing (see, People vMullen, 44 NY2d [1, 6 (1978)]). Therefore, the unique, indispensable presence of atleast the 'single-minded counsel for the accused' (People v Rosario, 9 NY2d 286,290 [1961]) is minimally necessary to safeguard that fundamental fairness to defendant"(People v Darby, 75 NY2d 449, 453-454 [1990]).
Here, the absence of defense counsel from the in camera interview, coupled with thecourt's failure to disclose what the juror said, deprived the defense of the opportunity toinquire as to whether the juror made similar prejudicial statements to any other jurors(see generally People v O'Rama, 78 NY2d 270, 279 [1991]; see also People v Kisoon, 8NY3d 129 [2007]).
The error was "inherently prejudicial," requiring a new trial (People vKisoon, 8 NY3d at 135 [internal quotation marks omitted]). Mastro, J.P., Chambers,Lott and Miller, JJ., concur.