| People v Smith |
| 2016 NY Slip Op 01134 [136 AD3d 532] |
| February 16, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Darryl Smith, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E.Knight of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ruth E. Smith, J.), rendered December13, 2010, convicting defendant, after a jury trial, of rape in the first degree, andsentencing him to a prison term of 15 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations.
Defendant's acquittal of other charges does not warrant a different conclusion(see People v Rayam, 94 NY2d 557 [2000]). Defendant's argument regarding thesufficiency of his written consent to replacement of a juror with an alternate duringdeliberations is unpreserved, and we decline to review it in the interest of justice. As analternative holding, we conclude that since defense counsel noted that he conferred withdefendant, since the court confirmed that defendant consented to the replacement andhad an opportunity to discuss the issue with counsel, and since the court obtaineddefendant's written signature on the consent form in open court, the inadvertent failure tocircle "consent," or cross out "do not consent" on a line reading "consent/do not consent"does not amount to a mode of proceedings error (CPL 270.35 [1]; compare People vPage, 88 NY2d 1 [1996] [lack of any writing]). This trivial oversight did not violatethe requirement of written consent to replacement of a deliberating juror (see NYConst, art I, § 2; CPL 270.35 [1]; People v Ryan, 19 NY2d 100,104-105 [1966]). The form plainly constituted written consent; the surplus "do notconsent" language was meaningless, given that the form would serve no purpose where adefendant did not consent.
Defendant's challenge to the court's instruction to the jury following the substitutionis likewise unpreserved. As an alternative holding, we find no basis for reversal (see People v Copeland, 10AD3d 588 [1st Dept 2004], lv denied 4 NY3d 743 [2004]).
The court properly granted two challenges for cause by the People. Both panelists'answers revealed "opinions reflecting a state of mind likely to preclude impartial service"(People v Johnson, 94 NY2d 600, 614 [2000]), and their statements as a wholenever established unequivocal assurances of impartiality (see e.g. People v Acosta, 88AD3d 483 [1st Dept 2011], lv denied 19 NY3d 861 [2012]). "It is almostalways wise . . . to err on the side of disqualification" because "the worst thecourt will have done in most cases is to have replaced one impartial juror with anotherimpartial juror" (People v Culhane, 33 NY2d 90, 108 n 3 [1973]).
Based on our review of the victim's psychiatric records, we find that the trial courtproperly inspected them in camera and correctly concluded that they were irrelevant.There was [*2]no reasonable possibility the withheldmaterials could have led to an acquittal (see People v McCray, 23 NY3d 193, 198 [2014];People v Gissendanner, 48 NY2d 543, 550 [1979]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Friedman, Sweeny and Manzanet-Daniels, JJ.