| People v Strassner |
| 2015 NY Slip Op 02342 [126 AD3d 1395] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimothy D. Strassner, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered May 10, 2010. The judgment convicted defendant, upon a jury verdict, ofdriving while intoxicated, a class E felony.
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 jury trial,of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]).Defendant contends that Supreme Court erred in denying his challenges for cause tothree prospective jurors whose statements during voir dire cast doubt on their ability tobe impartial. We agree.
It is well established that "[p]rospective jurors who make statements that cast seriousdoubt on their ability to render an impartial verdict, and who have givenless-than-unequivocal assurances of impartiality, must be excused" (People vArnold, 96 NY2d 358, 363 [2001]; see People v Nicholas, 98 NY2d 749,750 [2002]; People v Chambers, 97 NY2d 417, 419 [2002]). While no "particularexpurgatory oath or 'talismanic' words [are required,] . . . [prospective]jurors must clearly express that any prior experiences or opinions that reveal the potentialfor bias will not prevent them from reaching an impartial verdict" (Arnold, 96NY2d at 362). During voir dire, the statements of three prospective jurors with respect tothe credibility of the testimony of police officers or bias in favor of the police cast seriousdoubt on their ability to render an impartial verdict (see Nicholas, 98 NY2d at751-752; People v Lewis,71 AD3d 1582, 1583-1584 [2010]; People v Givans, 45 AD3d 1460, 1461 [2007]; People v Mateo, 21 AD3d1392, 1392-1393 [2005]), and those prospective jurors failed to provide"unequivocal assurance that they [could] set aside any bias and render an impartialverdict based on the evidence" (People v Johnson, 94 NY2d 600, 614 [2000]).Contrary to the court's conclusion, we conclude that the nodding by these threeprospective jurors as part of a group of prospective jurors who were "all noddingaffirmatively in regard to the statement [of another prospective juror]" was "insufficientto constitute such an unequivocal declaration" (People v Bludson, 97 NY2d 644,646 [2001]; see Lewis, 71 AD3d at 1583). Inasmuch as defendant had exhaustedall of his peremptory challenges before the completion of jury selection, the denial ofdefendant's challenges for cause constitutes reversible error (see CPL 270.20[2]; People v Harris, 23AD3d 1038, 1038 [2005]). Present—Smith, J.P., Peradotto, Lindley,Valentino and Whalen, JJ.