| People v Casillas |
| 2015 NY Slip Op 09454 [134 AD3d 1394] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v EliE. Casillas, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered August 1, 2013. The judgment convicted defendant, upon a jury verdict, ofstrangulation in the second degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, that part of the omnibus motion seeking to suppress the statements made bydefendant and the physical evidence seized from his apartment is granted, and a new trialis granted.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of the crimes of strangulation in the second degree (Penal Law§ 121.12) and assault in the second degree (§ 120.05 [2]).Contrary to defendant's contention, the conviction is supported by legally sufficientevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]) and, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see Bleakley, 69 NY2d at 495).
We agree with defendant, however, that Supreme Court erred in denying that part ofhis omnibus motion seeking to suppress statements made by defendant and tangibleproperty seized by the police following their warrantless entry into his apartment(hereafter, motion). As a preliminary matter, we note that, as the People correctlyconcede, the court failed to place its findings of fact and conclusions of law on the recordwith respect to defendant's motion as required by CPL 710.60 (6). " 'The failureto do so is not fatal, however, where, as here, there has been a full and fair hearing. Insuch instances, this [C]ourt may make its own findings of fact and conclusions oflaw' " (People vMcNeill, 107 AD3d 1430, 1431 [2013], lv denied 22 NY3d 957 [2013]).We reject the People's contention that the "emergency exception" justified thewarrantless entry into defendant's apartment. To the contrary, based on our review of therecord, we conclude that "the evidence at the suppression hearing [did] not establish thatthe police 'had reasonable grounds to believe that there [was] an emergency at hand andan immediate need for their assistance for the protection of life or property' " (People v Liggins, 64 AD3d1213, 1215 [2009], appeal dismissed 16 NY3d 748 [2011]). Indeed, thePeople did not present any evidence that the police observed anything unusual once theyarrived at defendant's apartment. Although the record indicates that defendant and thevictim may have been previously involved in domestic disputes, both police officerstestified at the suppression hearing that they did not have direct, personal knowledge ofany previous domestic violence or any indication that defendant and the victim wereengaged in a domestic dispute at the time they arrived at the apartment. The policeofficers testified only that they knew that defendant was inside the apartment but wouldnot answer the door. In our view, such testimony is insufficient to support adetermination that the "emergency exception" applied to justify the warrantless entry. Wetherefore grant that part of the motion seeking to suppress the statements made bydefendant and the physical evidence seized from his apartment, and we grant a newtrial.
[*2] In view of our resolution of thesuppression issue, there is no need to address defendant's remaining contentions. Wenote, however, that we agree with defendant that the court erred in denying hischallenges for cause to five prospective jurors during voir dire, inasmuch as the courtfailed to obtain unequivocal assurances of impartiality from each juror. "It is wellestablished that '[p]rospective jurors who make statements that cast serious doubt on theirability to render an impartial verdict, and who have given less-than-unequivocalassurances of impartiality, must be excused' " (People v Mitchum, 130 AD3d1466, 1467 [2015]; seePeople v Strassner, 126 AD3d 1395, 1396 [2015]). 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" (People vArnold, 96 NY2d 358, 362 [2001]). Here, the record establishes that five out of thesix prospective jurors clearly expressed concerns that not hearing from defendant orsomeone on behalf of defendant would affect, inter alia, their ability to be fair andimpartial. In response, the court instructed the jury panel that defendant has noresponsibility to put on any proof, that he may or may not call witnesses, that he may ormay not take the witness stand, and that it is the prosecution's burden to prove theelements of the crimes of which defendant is accused. The court then asked the jurypanel whether anyone had "a problem sitting as a fair and impartial juror in this case?"The five prospective jurors at issue remained silent.
In our view, the statements of the five prospective jurors cast serious doubt on theirability to render an impartial verdict (see People v Bludson, 97 NY2d 644, 646[2001]; People v Thorn, 269 AD2d 756, 757 [2000]). The court erred in notobtaining thereafter an "unequivocal assurance . . . from each of thosepotential jurors" to the effect that he or she could render an impartial verdict (Peoplev Holmes, 302 AD2d 936, 936 [2003] [internal quotation marks omitted]; seePeople v Nicholas, 98 NY2d 749, 751-752 [2002]). Furthermore, "we can infernothing from the [collective] silence of the challenged jurors" (Holmes, 302AD2d at 936). "Inasmuch as defendant had exhausted all of his peremptory challengesbefore the completion of jury selection, the denial of defendant's challenges for cause"would likewise constitute reversible error (Strassner, 126 AD3d at 1396).Present—Smith, J.P., Peradotto, Carni, Whalen and DeJoseph, JJ.