| People v Williams |
| 2015 NY Slip Op 02796 [127 AD3d 792] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Spears Williams, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, SholomJ. Twersky, Amy B. Rose, and Jean M. Joyce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County,(Garnett, J.), rendered March 5, 2012, convicting him of burglary in the second degree(four counts) and petit larceny (four counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
During the trial, a juror informed the court that she had been the victim of an assaulttwo days earlier, had reported the incident to the police, and had filed a complaint.Following inquiry, the court denied the defendant's application to discharge the swornjuror. On appeal, the defendant contends that this was error.
CPL 270.35 (1) provides that "[i]f at any time after the trial jury has been sworn andbefore the rendition of its verdict . . . the court finds, from facts unknown atthe time of the selection of the jury, that a juror is grossly unqualified to serve in the caseor has engaged in misconduct of a substantial nature . . . the court mustdischarge such juror." The " 'grossly unqualified' " standard " 'issatisfied only when it becomes obvious that a particular juror possesses a state of mindwhich would prevent the rendering of an impartial verdict' " (People v Porter, 77 AD3d771, 772 [2010], quoting People v Buford, 69 NY2d 290, 298 [1987]; see People v Johnson, 83AD3d 1094, 1095-1096 [2011]; People v Arena, 70 AD3d 1044, 1045-1046 [2010]). Inmaking such a determination, "the trial court must question each allegedly unqualifiedjuror individually in camera in the presence of the attorneys and defendant" (People vBuford, 69 NY2d at 299), conducting "a 'probing and tactful inquiry' into the 'uniquefacts' of each case, including a careful consideration of the juror's 'answers anddemeanor' " (People v Rodriguez, 71 NY2d 214, 219 [1988], quotingPeople v Buford, 69 NY2d at 299; see People v Johnson, 83 AD3d at1095-1096; People v Arena, 70 AD3d at 1046).
Contrary to the defendant's contention, the Supreme Court conducted a sufficientlyprobing and tactful inquiry, correctly determined that the sworn juror was not grosslyunqualified to serve, and properly denied the application to discharge the juror (seePeople v Harris, 99 NY2d 202 [2002]; People v Johnson, 83 AD3d at 1096;People v Osorio, 49 AD3d562 [2008]).
[*2] The defendant'scontention that the court's subsequent instruction to defense counsel and to the jurorimproperly shifted the onus onto those two to ascertain whether the ongoing policeinvestigation was influencing the juror's ability to remain impartial is raised for the firsttime on appeal and, thus, is unpreserved for appellate review (see CPL 470.05;People v Hicks, 6 NY3d737, 739 [2005]). In any event, the contention is without merit. Mastro, J.P.,Chambers, Austin and Miller, JJ., concur.