| People v Garcia |
| 2015 NY Slip Op 01468 [125 AD3d 882] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Luis Garcia, Appellant. |
Randall D. Unger, Bayside, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered May 7, 2012, convicting him of gang assault in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, 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]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Nonetheless, the judgment of conviction must be reversed, and a new trialordered.
The defendant contends that the trial court erred in denying challenges to twoprospective jurors for cause. While the defendant's contention is partially unpreserved forappellate review (see CPL 470.05 [2]; People v Toval, 216 AD2d 500[1995]), we reach the unpreserved portion in the exercise of our interest of justicejurisdiction.
CPL 270.20 (1) (b) provides that a prospective juror may be challenged for cause ifthe juror "has a state of mind that is likely to preclude him [or her] from rendering animpartial verdict based upon the evidence adduced at the trial." Where an issue is raisedconcerning the ability of a prospective juror to be fair and impartial, the prospective jurormust state unequivocally that his or her prior state of mind will not influence his or herverdict, and that he or she will render an impartial verdict based solely on the evidence(see People v Chambers, 97 NY2d 417 [2002]; People v Bludson, 97NY2d 644, 646 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]; Peoplev Blyden, 55 NY2d 73, 77-78 [1982]; People v Borges, 90 AD3d 1067 [2011]; People v Goodwin, 64 AD3d790, 791 [2009]; People vHayes, 61 AD3d 992, 992-993 [2009]; People v Garrison, 30 AD3d 612, 613 [2006]). "Aprospective juror's responses construed as a [*2]whole,must demonstrate an 'absolute belief that his [or her] opinion will not influencehis [or her] verdict' " (People v Goodwin, 64 AD3d at 792, quotingPeople v Culhane, 33 NY2d 90, 107 [1973]; see People v McQuade, 110NY 284, 301 [1888]).
Here, during voir dire, two prospective jurors indicated that due to incidents in whichthey had been the victims of crimes, they were unsure whether they could be objective orimpartial. The first prospective juror indicated that he had been "attacked more thanonce" by gangs in the past, and that the experience colored his opinion of gang members.When pressed, he repeatedly stated that he could only "try" to be fair and impartial. Thesecond prospective juror at issue indicated that he had been the victim of a robbery 11years earlier, and as a result, moved from Brooklyn to Queens. When asked if that wasgoing to affect his ability to be fair, the juror responded, "I'm not sure, probably not." Hesubsequently stated, "I will try my best." The trial court denied for-cause challenges tothe prospective jurors and, since the defense had exhausted all of its peremptorychallenges, the second prospective juror at issue was seated.
At no point did the prospective jurors unequivocally state that their prior states ofmind would not influence their verdict, and that they would render an impartial verdictbased solely on the evidence. Under the circumstances, the trial court should havegranted the defendant's challenges for cause (see People v Rose, 73 AD3d 1091 [2010]; People vGoodwin, 64 AD3d at 792; People v Hayes, 61 AD3d at 993). Since thedefense exhausted its allotment of peremptory challenges prior to the completion of juryselection, the judgment of conviction must be reversed and a new trial ordered (seeCPL 270.20 [2]; People v Torpey, 63 NY2d 361, 365 [1984]; People vGoodwin, 64 AD3d at 791; People v Hayes, 61 AD3d at 993).
The defendant's remaining contentions either are without merit or need not beaddressed in light of our determination. Dillon, J.P., Dickerson, Chambers and Roman,JJ., concur.