| People v Bedard |
| 2015 NY Slip Op 07703 [132 AD3d 1070] |
| October 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vStephen H. Bedard, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Clinton County(Lawliss, J.), rendered September 23, 2013, upon a verdict convicting defendant of thecrime of criminal possession of stolen property in the fifth degree.
Defendant, an operating room scrub technician, removed a partially used propofolvial from a surgical cart at the hospital where he was employed and then withdrew thepropofol into a syringe. Later that evening, he poked his wife's foot with the syringe asshe slept on a couch in what he claimed was an attempt to wake her. Defendant's wifetook the syringe and, with the help of her brother, who was a State Police investigator,determined that it contained 9.6 milligrams of propofol. Thereafter, defendant wasindicted for attempted assault in the second degree and criminal possession of stolenproperty in the fifth degree. A jury convicted him of the stolen property charge, butacquitted him of the attempted assault charge. Defendant was sentenced to one year injail and now appeals.
Legally sufficient proof supported defendant's conviction and, after weighing theproof in the record, we are unpersuaded by his contention that the jury's verdict wasagainst the weight of the evidence. We do, however, find merit in his argument that thedenial of his challenge for cause to a prospective juror constituted reversible error. Astatement by a potential juror suggesting a possible bias can be cured, and the juror notexcused, if the juror "provide[s] 'unequivocal assurance that [he or she] can set aside anybias and render an impartial verdict based on the evidence' " (People vNicholas, 98 NY2d 749, 751-752 [2002], quoting People v Johnson, 94NY2d 600, 614 [2000]). However, where, as here, the challenge for cause involves [*2]a juror's relationship with a trial participant, a so-called"implied bias" may be implicated which "requires automatic exclusion from jury serviceregardless of whether the prospective juror declares that the relationship will not affect[his or] her ability to be fair and impartial" (People v Furey, 18 NY3d 284, 287 [2011] [internalquotation marks and citations omitted]; see People v Rentz, 67 NY2d 829, 831[1986]; People v Branch, 46 NY2d 645, 650-651 [1979]). Of course, "[n]ot allrelationships . . . require disqualification . . . [and] [t]hefrequency of contact and nature of the parties' relationship are to be considered indetermining whether disqualification is necessary" (People v Furey, 18 NY3d at287). As a practical matter, "the trial court should lean toward disqualifying a prospectivejuror of dubious impartiality" (People v Branch, 46 NY2d at 651; see Peoplev Arnold, 96 NY2d 358, 362 [2001]).
Here, during voir dire, juror No. 3372 stated that her family was "good friends" withthe family of the District Attorney. She added that she socialized with the DistrictAttorney, including having him and his wife as dinner guests at her home, and she andher husband had dined as guests at the District Attorney's home. County Courtnonetheless denied defendant's challenge for cause as to such juror. In People vClark (125 AD2d 868 [1986], lv denied 69 NY2d 878 [1987]), we reversed ajudgment where the trial court denied the defendant's challenge for cause to a juror whowas personal friends with that District Attorney, even though, as here, an AssistantDistrict Attorney was prosecuting the case and the juror indicated that the relationshipwould not influence her verdict (id. at 869-870). In light of such precedent, andnoting that defendant exhausted his peremptory challenges before selection of the jurywas complete (see CPL 270.20 [2]; People v Lynch, 95 NY2d 243, 248[2000]), defendant's conviction must be reversed and a new trial conducted (see People v Smith, 52 AD3d847, 847-848 [2008]; People v Clark, 125 AD2d at 869-870). The remainingargument is academic.
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of Clinton County for a new trial.