| People v Hutthinson |
| 2017 NY Slip Op 03774 [150 AD3d 887] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steve Hutthinson, Appellant. |
Seymour W. James, Jr., New York, NY (Steven J. Miraglia of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barallof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cyrulnik,J.), rendered September 15, 2009, as amended September 22, 2009, convicting him of criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Gary, J.), of those branches of thedefendant's omnibus motion which were to suppress physical evidence and his statements to lawenforcement officials.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Contrary to the defendant's contention, the Supreme Court properly denied suppression of ahandgun and his statements made to law enforcement officials (see People v Hollman, 79NY2d 181, 190-191 [1992]; People v De Bour, 40 NY2d 210 [1976]; People v Karagoz, 143 AD3d 912[2016]; People v Montero, 130AD3d 474 [2015]; People vSims, 106 AD3d 1473 [2013]; People v Wannamaker, 93 AD3d 426 [2012]).
However, we agree with the defendant that the Supreme Court erred during jury selection indenying his for-cause challenge to prospective juror number 12 given her admission that herexperience as a crime victim would make it difficult for her to be fair and impartial (seeCPL 270.20 [1] [b]; People v Chambers, 97 NY2d 417, 419 [2002]).
"Criminal Procedure Law § 270.20 (1) (b) provides that a party may challenge aprospective juror for cause if the juror 'has a state of mind that is likely to preclude him [or her]from rendering an impartial verdict based upon the evidence [adduced] at the trial' "(People v Bludson, 97 NY2d 644, 645 [2001], quoting CPL 270.20 [1] [b]). Where anissue is raised concerning the ability of a prospective juror to be fair and impartial, theprospective juror must state unequivocally that his or her prior state of mind will not influencehis or her verdict, and that he or she will render an impartial verdict based solely on the evidence(see People v Bludson, 97 NY2d at 646; People v Chambers, 97 NY2d 417[2002]; People v Johnson, 94 NY2d 600, 614 [2000]; People v Blyden, 55 NY2d73, 77-78 [1982]; People [*2]v Alvarez, 130 AD3d 1054 [2015]; People v Garcia, 125 AD3d 882[2015]). A prospective juror's responses, construed as a whole, must demonstrate an absolutebelief that his or her prior opinion will not influence his or her verdict (see People vCulhane, 33 NY2d 90, 107 [1973]; People v McQuade, 110 NY 284, 301 [1888]; People v Valdez, 138 AD3d 1151,1152-1153 [2016]; People v Alvarez, 130 AD3d at 1054; People v Garcia, 125AD3d at 883; People v Goodwin, 64AD3d 790 [2009]).
Here, prospective juror number 12 stated unequivocally that her experience as a crimevictim, which she described as "traumatic," would make it hard for her to be fair and impartial inthis case. The prospective juror's follow-up statement that she would "have to hear the case"before she could make a decision did not rehabilitate her initial response (cf. People v Goodwin, 64 AD3d790 [2009]).
Inasmuch as the sum of the prospective juror's statements revealed a state of mind likely topreclude her from rendering an impartial verdict based upon the evidence adduced at the trial(see CPL 270.20 [1] [b]; People v Chambers, 97 NY2d at 419; People vArnold, 96 NY2d 358, 362 [2001]), the challenge for cause should have been allowed (see People v Barreto, 70 AD3d959 [2010]). Since the defendant subsequently exercised a peremptory challenge to removethe prospective juror, and later exhausted his allotment of peremptory challenges, the convictionmust be reversed, and a new trial ordered (see CPL 270.20 [2]; People v Garcia,125 AD3d at 884; People vGoodwin, 64 AD3d 790 [2009]). Leventhal, J.P., Sgroi, LaSalle and Barros, JJ.,concur.