| People v Reyes |
| 2015 NY Slip Op 01473 [125 AD3d 892] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nicolas S. Reyes, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (William A. Loeb and Allegra Glashausser ofcounsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, MerriTurk Lasky, and Mariana Zelig of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered February 29, 2012, convicting him of assault in the first degree,gang assault in the first degree, and gang assault in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
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 whole, must demonstrate an 'absolutebelief that his [or her] opinion will not influence his [or her] verdict' "(People v Goodwin, 64 AD3d at 792, quoting People v Culhane, 33NY2d 90, 107 [1973]; see People v McQuade, 110 NY 284, 301 [1888]).
Here, during voir dire, one prospective juror indicated that because her son was apolice officer, she was "not sure" whether she could be fair and impartial. When askedwhether she would "believe police just because they are police" and whether she was"going to follow the instructions on the law," she replied "I don't know." When askedagain if she could be fair and impartial, the juror stated "I'll try."
Additionally, two prospective jurors indicated that due to incidents in which they hadbeen 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 [*2]could only"try" to be fair and impartial. The second prospective juror at issue indicated that he hadbeen the victim of a robbery 11 years earlier, and as a result, moved from Brooklyn toQueens. When asked if that was going to affect his ability to be fair, the juror responded,"I'm not sure, probably not." He subsequently stated, "I will try my best." The trial courtdenied the defendant's challenges for cause to all three prospective jurors. The defendantexercised peremptory challenges to remove two of them, and since the defense hadexhausted all of its peremptory challenges, the third 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 to all three prospective jurors (see People v MacFarlane, 87AD3d 700 [2011]; People vRose, 73 AD3d 1091 [2010]; People v Goodwin, 64 AD3d at 792;People v Hayes, 61 AD3d at 993). Since the defense exhausted its allotment ofperemptory challenges prior to the completion of jury selection, the judgment ofconviction must be reversed and a new trial ordered (see CPL 270.20 [2];People v Torpey, 63 NY2d 361, 365 [1984]; People v Goodwin, 64AD3d at 791; People v Hayes, 61 AD3d at 993). Dillon, J.P., Dickerson,Chambers and Roman, JJ., concur.