| People v Harris |
| 2015 NY Slip Op 00554 [124 AD3d 796] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v James Harris, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder and David Greenberg ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L.Mandel, Marie-Claude P. Wrenn-Myers of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Balter, J.), rendered August 3, 2012, convicting him of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in theseventh degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
During jury selection, a prospective juror stated that she was engaged to a policeofficer, expressed doubt as to whether she could be fair and impartial, and then, afterstating that she thought she could be fair and impartial, stated that she could not believethat police officers would get on the witness stand and lie about a person selling drugs.The trial court, which did not undertake a further inquiry of the prospective juror, deniedthe defendant's challenge for cause to the prospective juror. Thereafter, the defendantused a peremptory challenge to excuse the prospective juror and subsequently exhaustedall peremptory challenges.
An accused is entitled to be tried by a fair and impartial jury (see People vBlyden, 55 NY2d 73, 76 [1982]). Section 270.20 of the Criminal Procedure Lawauthorizes a challenge for cause where a juror "has a state of mind that is likely topreclude him from rendering an impartial verdict based upon the evidence adduced at thetrial" (CPL 270.20 [1] [b]).
When a question is raised regarding a prospective juror's ability to render animpartial verdict, the prospective juror must expressly state in unequivocal terms that "hisprior state of mind concerning either the case or either of the parties will not influencehis verdict, and he must also state that he will render an impartial verdict based solely onthe evidence" (People v Blyden, 55 NY2d at 78). In considering whether suchstatements are unequivocal, the juror's testimony must be taken as a whole, and wherethere remains any doubt, the prospective juror should be discharged for cause (seeid.). Thus, when a potential juror states that he or she questions or doubts that he orshe can be fair in the case, the trial judge should either elicit some unequivocal assuranceof the juror's ability to be impartial or excuse the juror (see People v Johnson, 17NY3d 752, 753 [2011]; People v Johnson, 94 [*2]NY2d 600, 616 [2000]).
Here, as the prospective juror stated that she could not believe that police officerswould get on the witness stand and lie about a person selling drugs, the court erred indenying the defendant's challenge for cause without first eliciting some unequivocalassurance of the juror's ability to be impartial (see People v Johnson, 17 NY3d 752 [2011]; People vArnold, 96 NY2d 358 [2001]; People v Johnson, 94 NY2d 600 [2000];People v Blyden, 55 NY2d 73 [1982]; People v MacFarlane, 87 AD3d 700 [2011]; People v Sanchez, 60 AD3d442 [2009]). Since the defendant exercised a peremptory challenge to remove theprospective juror and exhausted his allotment of peremptory challenges prior to thecompletion of jury selection, the judgment of conviction must be reversed and a new trialordered (see CPL 270.20 [2]; People v MacFarlane, 87 AD3d 700 [2011]). Leventhal,J.P., Hall, Austin and Sgroi, JJ., concur.