| People v Alvarez |
| 2015 NY Slip Op 06354 [130 AD3d 1054] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Alvarez, Appellant. |
Seymour W. James, Jr., New York, N.Y. (David Crow, Andrew Fine, and White& Case, LLP [Kenneth Caruso, C. Kelly Newman, Christopher Volpe, LouisO'Neill, and John Spilman], of counsel), 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 assault in the first degree, gangassault in the first degree, and gang assault in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant contends that the Supreme Court improvidently exercised itsdiscretion in denying challenges to three prospective jurors for cause. While thedefendant's contention is partially unpreserved for appellate review (see CPL470.05 [2]; People v Toval, 216 AD2d 500 [1995]), we reach the unpreservedportion in the exercise of our interest of justice jurisdiction.
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 Bludson, 97 NY2d 644, 646 [2001]; People v Chambers, 97NY2d 417 [2002]; People v Johnson, 94 NY2d 600, 614 [2000]; People vBlyden, 55 NY2d 73, 77-78 [1982]; People v Borges, 90 AD3d 1067 [2011]; People v Goodwin, 64 AD3d790, 791 [2009]). A prospective juror's responses, construed as a whole, mustdemonstrate an absolute belief that his or her prior opinion will not influence his or herverdict (see People v Culhane, 33 NY2d 90, 107 [1973]; People vMcQuade, 110 NY 284, 301 [1888]; People v Goodwin, 64 AD3d at792).
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 theyhad [*2]been the victims of crimes, they were unsurewhether they could be objective or impartial. The first indicated that he had been"attacked . . . more than once" by gangs in the past, and that the experiencecolored his opinion of gang members. When pressed, he repeatedly stated that he couldonly "try" to be fair and impartial. The second prospective juror at issue indicated that hehad been the victim of a robbery 11 years earlier, and as a result, moved from Brooklynto Queens. When asked if that was going to affect his ability to be fair, the jurorresponded, "I'm not sure, probably not." He subsequently stated, "I will try my best." TheSupreme Court denied the defendant's challenges for cause to all three prospective jurors.The defendant exercised peremptory challenges to remove two of them, and since thedefense had by that point exhausted all of its peremptory challenges, the third juror atissue 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 Supreme Court should havegranted the defense'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 AD3d992 [2009]). Since the defense exhausted its allotment of peremptory challengesprior to the completion of jury selection, the judgment of conviction must be reversedand a new trial ordered (see CPL 270.20 [2]; People v Torpey, 63 NY2d361, 365 [1984]; People v Goodwin, 64 AD3d at 791; People v Hayes, 61AD3d at 993).
The defendant's remaining contentions need not be addressed in light of ourdetermination. Mastro, J.P., Cohen, Maltese and Barros, JJ., concur.