| People v Hargis |
| 2017 NY Slip Op 05363 [151 AD3d 1946] |
| June 30, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Nicole E.Hargis, Appellant. (Appeal No. 1.) |
Linda M. Campbell, Syracuse, for defendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedFebruary 2, 2015. The judgment convicted defendant, upon a jury verdict, of predatory sexualassault against a child (two counts), criminal sexual act in the second degree (35 counts),criminal sexual act in the third degree (three counts), rape in the second degree (two counts), rapein the third degree (four counts) and endangering the welfare of a child (three counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted on counts 1, 3 through 16, 18 through 50, and 52 of theindictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her upon ajury verdict of various sex crimes committed against three victims, including two counts ofpredatory sexual assault against a child (Penal Law § 130.96). In appeal No. 2, sheappeals from a judgment convicting her upon the same jury verdict of rape in the second degree(§ 130.30 [1]) committed against a fourth victim. The appeals arise from separateindictments that were joined for trial. In both appeals, viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). We reject defendant's contention that the testimony of the victimswas incredible as a matter of law (seePeople v St. Ives, 145 AD3d 1185, 1187-1188 [2016]; People v Nilsen, 79 AD3d 1759,1760 [2010], lv denied 16 NY3d 862 [2011]; People v Baker, 30 AD3d 1102, 1102-1103 [2006], lvdenied 7 NY3d 846 [2006]).
We agree with defendant, however, that County Court erred in denying her challenge forcause to a prospective juror whose statements during voir dire cast serious doubt on her ability tobe impartial (see generally CPL 270.20 [1] [b]; People v Arnold, 96 NY2d 358,362-363 [2001]). Upon being asked by defense counsel whether she thought that she "wouldhave to hear from [defendant] in order to determine what the verdict should be," the prospectivejuror responded, in relevant part, that she "would like to hear from everyone involved." Defensecounsel later asked the prospective juror, by way of confirmation, whether she had said that shewould "like to hear from [defendant]," and the prospective juror reiterated that she "would like tohear from everyone." We conclude that the prospective juror's responses suggested that defendanthad an obligation to testify, thereby casting serious doubt on her ability to render an impartialverdict (see People v Bludson, 97 NY2d 644, 645-646 [2001]; People v Casillas, 134 AD3d 1394,1395-1396 [2015]; People vJackson, 125 AD3d 485, 485-486 [2015]; People v Givans, 45 AD3d 1460, 1461 [2007]; People v Russell, 16 AD3d 776,777-778 [2005], lv denied 5 NY3d 809 [2005]). We further conclude that the prospectivejuror's silence when the court subsequently asked the entire panel whether anyone "needs to hearfrom the defendant or must hear from the defendant before he or she renders a verdict" did notconstitute an unequivocal assurance of impartiality that would warrant denial of defendant'schallenge for cause (see Arnold, 96 NY2d at 363-364; Casillas, 134 AD3d at1396; People v Strassner, 126 AD3d1395, 1396 [2015]; cf. People vTaylor, 134 AD3d 1165, 1169 [2015], lv denied [*2]26 NY3d 1150 [2016]). Inasmuch as defendant exercised aperemptory challenge with respect to the prospective juror and exhausted all of her peremptorychallenges before the completion of jury selection, the denial of her challenge for causeconstitutes reversible error (see CPL 270.20 [2]; Strassner, 126 AD3d at 1396).We therefore reverse the judgment in each appeal and grant a new trial on the counts of whichdefendant was convicted.
In view of our determination, we do not address defendant's remaining contentions, includingher contention that the court erred in denying her challenge for cause to another prospectivejuror. Present—Whalen, P.J., Peradotto, DeJoseph, Curran and Winslow, JJ.