| People v Collier |
| 2014 NY Slip Op 00752 [114 AD3d 1136] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarloL. Collier, Also Known as "Killer," Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered January 9, 2007. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, robbery in the first degree, kidnapping in the second degreeand assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [3]), robbery in thefirst degree (§ 160.15 [2]), kidnapping in the second degree (§ 135.20), andassault in the second degree (§ 120.05 [2]). Defendant failed to preserve for ourreview his contention that the evidence is legally insufficient to establish his identity asone of the perpetrators of the offenses inasmuch as he made only a general motion for atrial order of dismissal (see People v Gray, 86 NY2d 10, 19 [1995]). Contrary todefendant's further contention, viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
We agree with defendant, however, that he was deprived of a fair trial by referencesto his nickname, "Killer," made by two prosecution witnesses and by the prosecutor fivetimes during summation. To the extent that this issue is not preserved for our review(see People v Caver, 302 AD2d 604, 604 [2003], lv denied 99 NY2d 653[2003]), we agree with defendant that he was deprived of effective assistance of counselbased on defense counsel's failure to object when the prosecutor elicited that testimonyand made those remarks on summation (see People v Webb, 90 AD3d 1563, 1564-1565 [2011],amended on rearg 92 AD3d 1268 [2012]). The references to defendant'snickname were highly prejudicial and had minimal, if any, probative value inasmuch asthe witnesses knew defendant by his given name (see id. at 1565; People vSantiago, 255 AD2d 63, 66 [1999], lv denied 94 NY2d 829 [1999]; cf. People v Tolliver, 93 AD3d1150, 1150-1151 [2012], lv denied 19 NY3d 968 [2012]). At one pointduring his summation, the prosecutor remarked that "[o]n the street [defendant] hasanother nickname, it is Killer. There's a reason for that." In doing so, the prosecutor wasimproperly [*2]urging the jurors to "consider defendant'snickname as evidence that he [committed murder]" (Webb, 90 AD3d at 1565).
We further agree with defendant that reversal is warranted based on Supreme Court'sdismissal of the first jury panel. The first jury panel of approximately 36 people weresworn, and the court called 14 prospective jurors to be seated in the jury box. The courtasked preliminary questions and, as the court excused certain prospective jurors based oninconvenience or hardship, the court would seat another prospective juror in the jury box.After the court excused approximately 10 prospective jurors, defense counsel informedthe court that he was "concerned about the fact that the [c]ourt [wa]s frustrated with theexcuses," and was "afraid of the spi[ll]-over effect to the other [prospective] jurors sittingthere[, who may] . . . be more defensive than they should be and moredisdainful of the fact that they [we]re being kept" there. The court did not agree withdefense counsel that the prospective jurors had been angered by its comments, but askedwhether defense counsel wanted the court to discharge the entire panel. Althoughdefense counsel repeatedly answered no, the court discharged the panel. That was error.
Where, as here, a jury panel is "properly drawn and sworn to answer questionstruthfully, there must be legal cause or a peremptory challenge to exclude a [prospective]juror" (People v Thorpe, 223 AD2d 739, 740 [1996], lv denied 88 NY2d1025 [1996]; see CPL 270.05 [2]). By dismissing the entire jury panel withoutquestioning the ability of the individual prospective jurors to be fair and impartial (see generally People v Wells, 7NY3d 51, 59-60 [2006]), the court deprived defendant of a jury chosen "at randomfrom a fair cross-section of the community" (Judiciary Law § 500; see CPL270.05 [2]; People vRoblee, 70 AD3d 225, 228-230 [2009]).
In light of our determination, we do not address defendant's remaining contentions.Present—Scudder, P.J., Smith, Centra, Carni and Whalen, JJ.