| People v Young |
| 2014 NY Slip Op 04975 [119 AD3d 970] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vShawn Young, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
Robert M. Carney, District Attorney, Schenectady (John R. Healy of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered August 19, 2011, upon a verdict convicting defendant of the crimesof burglary in the first degree, robbery in the first degree and grand larceny in the thirddegree.
In the early morning hours of August 19, 2010, defendant and another assailantforced their way at gun point into the victim's apartment in the City of Schenectady,Schenectady County, ordered Winston Tull and William Davis, who were visiting thevictim, to lie on the floor and stole money and drugs from the victim before fleeing theapartment. Following a jury trial, defendant was convicted of burglary in the first degree,robbery in the first degree and grand larceny in the third degree and was sentenced to anaggregate prison term of 20 years. Defendant now appeals.
We agree with defendant that County Court committed reversible error in denyinghis challenge for cause to prospective juror No. 153. "Prospective jurors who makestatements that cast serious doubt on their ability to render an impartial verdict, and whohave given less-than-unequivocal assurances of impartiality, must be excused"(People v Arnold, 96 NY2d 358, 363 [2001] [citations omitted]; see People v Harris, 19 NY3d679, 685 [2012]; People vMcGuire, 101 AD3d 1386, 1388 [2012]). Here, during jury selection, juror No.153 stated that he was "very uncomfortable" about the alleged use of a firearm during thecommission of the charged crimes. When asked by defense counsel if his stateddiscomfort was something that [*2]would affect hisability to keep an open mind, juror No. 153 responded, "It might. I can't say for sure whatit is, but it's a concern to me."
After questioning of this panel had concluded, and out of the presence of theprospective jurors, defense counsel challenged juror No. 153 for cause. County Court,stating that defense counsel failed to ask any follow-up questions of juror No. 153 at thetime the juror made the subject statements in order to make out an appropriate foundationfor cause, denied the challenge. Having heard the statements by juror No. 153, CountyCourt should have either granted the challenge for cause or conducted a further inquiryof that juror and obtained express, unequivocal assurances on the record of hisimpartiality (see People v Harris, 19 NY3d at 685-686; People vMcGuire, 101 AD3d at 1388; People v Thigpen, 277 AD2d 261, 261[2000]). As the record demonstrates, no such assurances were even sought—muchless obtained—from this particular juror. Although the record indeed indicates thatthe prospective jurors collectively responded in the affirmative when asked—as agroup—if they could render a decision based solely upon the evidence presented,County Court did not specifically address the concern expressed by juror No. 153 in anymeaningful way or otherwise obtain assurances of his impartiality. Absent suchassurances, and given the fact that defendant exhausted his peremptory challenges, thedenial of defendant's challenge for cause constitutes reversible error (see People vNicholas, 98 NY2d 749, 752 [2002]; People v Jones, 45 AD3d 1178, 1179 [2007]; seealso CPL 270.20 [2]). Accordingly, this matter is remitted for a new trial.
Finally, although we agree that the People improperly used Davis' testimony tobolster the victim's prior identification testimony of defendant as the perpetrator, anyerror in this regard "was most certainly harmless in light of [the victim's] unequivocaland well-grounded identification testimony and the overwhelming evidence ofdefendant's guilt" (People vVargas, 60 AD3d 1236, 1239 [2009], lv denied 13 NY3d 750 [2009]).The balance of defendant's evidentiary objections have been examined and found to belacking in merit.
Peters, P.J., Rose, Lynch and Devine, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Schenectady County fora new trial.