| People v Malloy |
| 2016 NY Slip Op 02380 [137 AD3d 1304] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Derek Malloy, Appellant. |
Seymour W. James, Jr., New York, NY (William B. Carney of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Cyrulnik, J.), rendered August 11, 2014, convicting him of assault in the third degreeand criminal mischief in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
When a defendant is accused of a felony, the indictment must be dismissed unless thePeople are ready for trial within six months after the commencement of the criminalaction (see CPL 30.30 [1] [a]; People v Young, 110 AD3d 1107, 1107-1108 [2013]).With respect to periods of delay that occur following the People's statement of readiness,any period of an adjournment in excess of that actually requested by the People isexcluded (see People v Carter, 91 NY2d 795, 799 [1998]; People vCortes, 80 NY2d 201 [1992]; People v Young, 110 AD3d at 1107-1108).Here, the total time chargeable to the People was less than the six-month time periodprovided by CPL 30.30 (1) (a). Accordingly, the Supreme Court properly denied thedefendant's motion pursuant to CPL 30.30 to dismiss the indictment.
Nevertheless, we find that the judgment of conviction must be reversed. CPL 270.20(1) (b) provides that a prospective juror may be challenged for cause if the juror "has astate of mind that is likely to preclude him [or her] from rendering an impartial verdictbased upon the evidence adduced at the trial." Where an issue is raised concerning theability of a prospective juror to be fair and impartial, the prospective juror must stateunequivocally that his or her prior state of mind will not influence his or her verdict, andthat he or she will render an impartial verdict based solely on the evidence (seePeople v Johnson, 94 NY2d 600, 614 [2000]; People v Goodwin, 64 AD3d 790, 791 [2009]). Aprospective juror's responses, construed as a whole, must demonstrate an absolute beliefthat his or her prior opinion will not influence his or her verdict (see People vCulhane, 33 NY2d 90, 107 [1973]; People v Goodwin, 64 AD3d at792).
Here, during voir dire, one prospective juror indicated that because her aunt had beenthe victim of a violent sexual assault, it would "be a little bit hard" for her to keep anopen mind when listening to the facts of this case. When asked whether she could "givethe defendant in this [*2]case a fair trial," she responded,"I can manage. Yes." When asked if it was possible that her judgment in this case mightbe affected by her aunt's case, she responded, "Might." The Supreme Court also askedthe prospective juror if the fact that this case did not involve a sex crime would "changethings" for her, and she responded, "Part of it. Yeah." The prospective juror confirmedthat she would refrain from blaming the defendant for what happened to her aunt orfavoring the prosecution for successfully prosecuting her aunt's assailant, but when askedagain by defense counsel whether her aunt's experience "might affect [her] ability tojudge this case," the juror paused and finally said, "I don't know." The court denied thedefendant's challenge for cause to this prospective juror. The defense then exercised aperemptory challenge to remove her and exhausted all of its peremptory challenges priorto the end of jury selection.
At no point did the prospective juror unequivocally state that her prior state of mindwould not influence her verdict, and that she would render an impartial verdict basedsolely on the evidence. Under the circumstances, the Supreme Court should have grantedthe defense's challenge for cause to this prospective juror (see People v Alvarez, 130AD3d 1054, 1054-1055 [2015]; People v Reyes, 125 AD3d 892, 893 [2015]; People v Harris, 124 AD3d796, 797 [2015]; People vMacFarlane, 87 AD3d 700 [2011]; People v Goodwin, 64 AD3d at 792).Since the defense exhausted its allotment of peremptory challenges prior to thecompletion of jury selection, we reverse the judgment and order a new trial (seeCPL 270.20 [2]; People vMacFarlane, 87 AD3d 700 [2011]; People v Goodwin, 64 AD3d at791).
The defendant's remaining contention need not be addressed in light of ourdetermination. Hall, J.P., Austin, Sgroi and LaSalle, JJ., concur.