| People v Mitchum |
| 2015 NY Slip Op 05808 [130 AD3d 1466] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJerold N. Mitchum, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Harter Secrest & Emery LLP(Maura C. McGuire of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Robert B. Wiggins, A.J.),rendered December 22, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (two counts), criminal possessionof a weapon in the third degree, and criminally using drug paraphernalia in the seconddegree (two counts).
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, following a jurytrial, of two counts each of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]) and criminally using drug paraphernalia in thesecond degree (§ 220.50 [2], [3]), and one count of criminal possession of aweapon in the third degree (§ 265.02 [1]). Defendant contends that CountyCourt erred in denying his challenge for cause to a prospective juror whose statementsduring voir dire cast doubt on the prospective juror's ability to be impartial. Weagree.
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; see People vStrassner, 126 AD3d 1395, 1396 [2015]). Here, the statement of a prospectivejuror during voir dire with respect to the credibility of the testimony of police officers orbias in favor of the police cast serious doubt on his ability to render an impartial verdict(see Nicholas, 98 NY2d at 751-752; Strassner, 126 AD3d at 1396; People v Lewis, 71 AD3d1582, 1583-1584 [2010]), and that prospective juror failed to provide "unequivocalassurance that [he could] set aside any bias and render an impartial verdict based on theevidence" (People v Johnson, 94 NY2d 600, 614 [2000]). Contrary to the court'sconclusion, we conclude that the prospective juror's answers to the questions asked bythe court after he expressed bias toward the police were "insufficient to constitute suchan unequivocal declaration" (People v Bludson, 97 NY2d 644, 646 [2001];see Strassner, 126 AD3d at 1396). "Inasmuch as defendant had exhausted all ofhis peremptory challenges before the completion of jury selection, the denial ofdefendant's challenge[ ] for cause constitutes reversible error" (Strassner, 126AD3d at 1396; see CPL 270.20 [2]).
Contrary to the further contention of defendant, we conclude that the court properlyrefused to suppress evidence seized from his home. Contrary to defendant's contention,the confidential informant's basis of knowledge was sufficiently established at the incamera Darden hearing (see People v Darden, 34 NY2d 177 [1974])."Without disclosing the exact substance of the Darden hearing testimony, weconclude that the information from the informant, in its totality, provided ample basis toconclude that the informant had a basis for his or her knowledge that defendant was inpossession of [drugs or drug paraphernalia]" (People v Knight, 94 AD3d 1527, 1528-1529 [2012], lvdenied 19 NY3d 998 [2012] [internal quotation marks omitted]). We furtherconclude that the hearsay information supplied in the search warrant application satisfiedthe two prongs of the Aguilar-Spinelli test and that the search warrant was issuedupon probable cause (see Peoplev Monroe, 82 AD3d 1674, 1675 [2011], lv denied 17 NY3d 808[2011]; People v Flowers,59 AD3d 1141, 1142-1143 [2009]; People v Hernandez, 262 AD2d 1032,1032 [1999], lv denied 94 NY2d 863 [1999]). In view of the quality of theconfidential informant's information, it is irrelevant that the controlled buy did not occurat defendant's home (see Peoplev Myhand, 120 AD3d 970, 974 [2014], lv denied 25 NY3d 952 [2015]).Consequently, although we agree with defendant that we cannot uphold the suppressionruling based on the eavesdropping information inasmuch as the court did not rely on thatinformation in refusing to suppress the evidence (see People v Concepcion, 17 NY3d 192, 195 [2011]; People v Roosevelt, 125 AD3d1452, 1454 [2015]), we reject defendant's contention that the evidence recoveredfrom his residence should have been suppressed. Present—Scudder, P.J., Centra,Peradotto, Lindley and Whalen, JJ.