| People v Valdez |
| 2016 NY Slip Op 03203 [138 AD3d 1151] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Valdez, Appellant. |
Robert C. Mitchell, Riverhead, NY (Louis E. Mazzola of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Thomas C. Costello of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Kahn, J.), rendered November 15, 2013, convicting him of predatory sexual assaultagainst a child, sexual abuse in the first degree, course of sexual conduct against a childin the first degree, and endangering the welfare of a child, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's contention that the evidence was legally insufficient to establish hisguilt beyond a reasonable doubt is unpreserved for appellate review, as he did not raisethe specific contentions he now raises on appeal when making his motion for a trial orderof dismissal (see CPL 470.05 [2]; People v Collins, 122 AD3d 873 [2014]; People v Crooks, 118 AD3d816 [2014]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence.
Nonetheless, the judgment must be reversed, and a new trial ordered.
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 Alvarez, 130 AD3d 1054 [2015]; People v Garcia, 125 AD3d882 [2015]). 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 [*2]284, 301 [1888]; People vAlvarez, 130 AD3d at 1054; People v Garcia, 125 AD3d at 883; People v Goodwin, 64 AD3d790 [2009]).
Here, during voir dire, one prospective juror indicated in response to questioning bydefense counsel that, because she had a 14-year-old daughter and a 17-year-old daughter,this "could" weigh on her ability to be fair and impartial because "[t]hey are the same agerange" as the complainant. When defense counsel followed up by asking, "[w]ould youfear whether or not you could be fair and impartial?," the prospective juror responded bystating, "I think it would be hard for me to watch a witness, being that I have daughtersthe same age."
Once the prospective juror expressed doubt regarding her ability to be impartial, itwas incumbent upon the court to ascertain that she would render an impartial verdictbased on the evidence (see People v Arnold, 96 NY2d 358 [2001]; People v Weber, 103 AD3d822 [2013]; People vBorges, 90 AD3d 1067 [2011]). This was not done. As a result, the CountyCourt erred in denying the defendant's challenge for cause to the prospective juror. Thefailure to grant the defendant's challenge for cause constituted reversible error becausethe defendant exhausted all of his peremptory challenges prior to the completion of juryselection (see CPL 270.20 [2]; People v Torpey, 63 NY2d 361 [1984];People v Weber, 103 AD3d at 823; People v Borges, 90 AD3d at 1068;People v Harris, 14 AD3d622 [2005]).
In light of our determination, the defendant's remaining contentions have beenrendered academic. Eng, P.J., Hall, Sgroi and Duffy, JJ., concur.