| People v Ellis |
| 2018 NY Slip Op 08143 [166 AD3d 993] |
| November 28, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Ellis, Appellant. |
Paul Skip Laisure, New York, NY (William Kastin of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nancy Fitzpatrick Talcott, Deborah E. Wassel, and Danielle O'Boyle ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Gregory Lasak, J.), rendered July 18, 2012, convicting him of attempted murder in thesecond degree, assault in the first degree (two counts), robbery in the first degree (twocounts), criminal possession of a weapon in the second degree (two counts), and criminalpossession of stolen property in the fifth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant appeals from a judgment convicting him, inter alia, of the attemptedsecond-degree murder, first-degree assault, and first-degree robbery of Carl Field. Thedefendant was prosecuted under a theory that he acted in concert with the codefendant,Dexter Bostic, who shot Field, and that the defendant drove the get-away car.
At the jury trial, a witness testified that on July 8, 2007, at about 3:30 a.m., while shewas working as a prostitute on Sutphin Boulevard in Queens, the defendant picked herup in a Porsche, and they subsequently picked up Bostic. The witness further testifiedthat Bostic had a black gun with a silencer, and that he and the defendant stated that theywere looking for someone to rob. After the defendant and Bostic let the witness out ofthe car, she hurried down the street. Field and another witness testified that the Porschecame to a "screeching halt" on Sutphin Boulevard, and that Bostic got out of the vehicleand shot Field four times, hitting him in the leg. Bostic took Field's chain necklace beforereentering the Porsche, which then sped away. The witness who had been riding with thedefendant and Bostic testified that she heard the shots and phoned the defendant, whotold her, "we just shot some[one]." The witness overheard Bostic in the backgroundsaying that they just "popped" someone. Phone records established that the witness madea 48-second call to the defendant shortly after the incident. The evidence at trial furtherestablished that Field underwent a seven-hour operation to put a metal rod into his knee,spent six months in a hospital, and could not walk for two years.
The defendant argues in his main brief on appeal that (1) he was denied his right to[*2]counsel of his choice, (2) his for-cause challenge to aprospective juror was improperly denied, (3) he was deprived of a fair trial because hewas made to appear at voir dire and subsequent trial proceedings in prison clothing, (4)the Supreme Court improperly admitted into evidence his videotaped statement inviolation of his right to counsel, and (5) the prosecutor's comments in summationdeprived him of a fair trial.
The defendant contends that he was denied the right to his choice of counsel becausethe Supreme Court denied his request to appoint the 18-B attorney who represented himin an unrelated criminal case that had concluded two years prior. We agree with ourdissenting colleague that this issue is not properly raised on direct appeal, but rathershould be raised in a CPL 440.10 motion to vacate the judgment of conviction becausethe facts supporting the defendant's claim are dehors the record (see People v Jackson, 29 NY3d18 [2017]; People vGeritano, 158 AD3d 724 [2018]).
The Supreme Court properly denied the defendant's for-cause challenge to aprospective juror who was a retired school security officer for the New York City PoliceDepartment (hereinafter NYPD). Coincidentally, this prospective juror's son hadpreviously been excused as a prospective juror in this case because that son was anNYPD sergeant and knew two of the witnesses in the case. The son indicated in his voirdire that he would have a problem being fair, and he was excused on consent of bothsides. However, upon voir dire questioning, the retired school security officerunequivocally stated that he could be impartial. After defense counsel challenged thisprospective juror for cause, the court conducted its own questioning. The retired schoolsecurity officer stated that he had not heard anything about the case, and that he had notand would not discuss the case with his son, and he reaffirmed that he could be fair andimpartial (see People v Johnson, 94 NY2d 600 [2000]; People v Culhane,33 NY2d 90 [1973]). Contrary to the defendant's contention and our dissentingcolleague's conclusion, the mere fact that the retired school security officer was related toa prospective juror who was excused for cause does not establish an implicit bias (cf. People v Furey, 18 NY3d284 [2011]; People vPowell, 153 AD3d 1034 [2017]; People v Guldi, 152 AD3d 540 [2017]; People v Montford, 145 AD3d1344 [2016]; People vBedard, 132 AD3d 1070 [2015]; People v Hamilton, 127 AD3d 1243 [2015]; People v Greenfield, 112AD3d 1226 [2013]). Thus, the expurgatory oath of the retired school security officerwas sufficient to establish his impartiality. There is no evidence in this record that theretired school security officer had a relationship with the defendant, the victim, aprospective witness, or counsel so as to support a claim of implicit bias (cf. People vFurey, 18 NY3d at 287).
Contrary to the conclusion of our dissenting colleague, the defendant's contentionthat he was deprived of a fair trial because he allegedly wore prison garb for 3 days ofjury selection and more than 5 days of witness testimony during the 18-day trial isunpreserved for appellate review. At no point during jury selection or the first days oftestimony did defense counsel or the defendant make an application to adjourn or objectto the proceedings in order to obtain civilian clothes (see CPL 470.05 [2];Estelle v Williams, 425 US 501 [1976], People v Shaw, 126 AD3d 1016, 1017 [2015]; People v Bullock, 28 AD3d673, 673 [2006]). In any event, the contention is without merit. While "the Statecannot, consistently with the Fourteenth Amendment, compel an accused to stand trialbefore a jury while dressed in identifiable prison clothes" (Estelle v Williams,425 US at 512), the record here establishes that the Supreme Court gave the defendantmultiple pretrial adjournments during which he could have obtained civilian clothes, buthe failed to do so. Further, the state-issued clothing that the defendant wore bore nomarkings indicating that it was prison clothing (see People v Johnston, 43 AD3d 1273 [2007]; People vEverson, 262 AD2d 1059 [1999]; People v Reid, 137 AD2d 844 [1988]).Ultimately, the defendant was provided a civilian suit by his counsel, and there was noexplanation as to why such clothing could not have been provided earlier in theproceedings.
The defendant correctly contends that his videotaped statement was improperlyadmitted in violation of his right to counsel (see People v Lopez, 16 NY3d 375 [2011]; People v Borukhova, 89 AD3d194 [2011]). However, the admission of the defendant's statement constitutedharmless error because the evidence of his guilt, without reference to the statement, wasoverwhelming, and there was no reasonable possibility that the jury would have acquittedhim had it not been for the constitutional error (see People v Crimmins, 36 NY2d230 [1975]; People vBorukhova, 89 AD3d 194 [2011]; People v Payne, 41 AD3d 512 [2007]).
[*3] The defendant failed to preserve for appellate reviewhis contention that certain of the prosecutor's summation comments deprived him of afair trial (see CPL 470.05 [2]). In any event, the prosecutor's remarks insummation, for the most part, constituted fair comment on the evidence and theinferences to be drawn therefrom (see People v Fuhrtz, 115 AD3d 760 [2014]; People v Birot, 99 AD3d933 [2012]; People vGuevara-Carrero, 92 AD3d 693 [2012]; People v McHarris, 297 AD2d824, 825 [2002]), or were fair response to defense counsel's comments during summation(see People v Adamo, 309 AD2d 808 [2003]; People v Clark, 222 AD2d446 [1995]; People v Vaughn, 209 AD2d 459 [1994]), and any improperstatements "were not so flagrant or pervasive" as to deprive the defendant of a fair trial(People v Almonte, 23AD3d 392, 394 [2005]; see People v Svanberg, 293 AD2d 555 [2002]).
Contrary to the defendant's contention, raised in his pro se supplemental brief,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), there was legally sufficient evidence to establish thedefendant's guilt of attempted murder in the second degree, assault in the first degree(two counts), robbery in the first degree (two counts), criminal possession of a weapon inthe second degree (two counts), and criminal possession of stolen property in the fifthdegree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt as to those crimes was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's further contention, raised in his pro se supplemental brief,the Supreme Court did not err in denying his motion for a missing witness charge,because the testimony of the subject witness would not have been material to the case (see People v Mamadou, 129AD3d 993 [2015]; People vLopez, 19 AD3d 510 [2005]; People v Rivera, 174 AD2d 581[1991]).
Contrary to the further contention raised in the defendant's pro se supplemental brief,the Supreme Court providently exercised its discretion in denying the defendant's motionfor a mistrial after a witness made a brief reference to a police officer being shot, acharge for which the defendant was not being tried. "The decision to declare a mistrialrests with the sound discretion of the trial court, which is in the best position to determineif this drastic remedy is necessary to protect the defendant's right to a fair trial" (People v Redmon, 81 AD3d752, 752 [2011] [internal quotation marks omitted]). Here, the court struck theimproper testimony from the record and directed the jury to disregard it, therebyameliorating any prejudice to the defendant resulting from the testimony (see People v Hicks, 84 AD3d1402 [2011]; People vBrescia, 41 AD3d 613 [2007]; People v Brown, 290 AD2d 251[2002]).
The remaining contentions raised in the defendant's pro se supplemental brief areeither based on matter dehors the record and, thus, not properly before this Court (see People v Ingram, 142AD3d 676 [2016]; People vFully, 109 AD3d 936 [2013]), or without merit (see People v Ingram, 142AD3d 676). Balkin, J.P., Iannacci and Christopher, JJ., concur.
Barros, J., dissents, and votes to reverse the judgment, on the law, and remit thematter to the Supreme Court, Queens County, for a new trial before a differentJustice.
In 2007, the defendant, Robert Ellis, was arrested in relation to his allegedinvolvement in the shooting of Carl Field on July 8, 2007, in Queens, and the shooting oftwo police officers the next day, on July 9, 2007, in Brooklyn. In Kings County, thedefendant, Dexter Bostic, and Lee Woods were charged with, inter alia, aggravatedmurder of Police Officer Russell Timoshenko and attempted murder of the other officeron July 9, 2007, in Brooklyn. By judgment rendered January 14, 2009, the SupremeCourt, Kings County, upon a jury verdict, convicted the defendant of three counts ofcriminal possession of a weapon in the second degree. The defendant was acquitted ofaggravated murder and attempted murder of the police officers. The codefendants, Bosticand Woods, were each convicted of aggravated murder.
[*4] In this Queens County case arising from the shootingof Field on July 8, 2007, the defendant was charged with attempted murder in the seconddegree, two counts of assault in the first degree, three counts of robbery in the firstdegree, robbery in the second degree, two counts of criminal possession of a weapon inthe second degree, and criminal possession of stolen property in the fifth degree. Thedefendant was convicted, upon a jury verdict, of all the charges except one count ofrobbery in the first degree and the count of robbery in the second degree, which countswere dismissed before the Supreme Court submitted the charges to the jury. Bostic wascharged on the same indictment and convicted of the same charges as thedefendant.
I. Right to Counsel
At his arraignment on this Queens County case on October 27, 2010, the defendantrequested that Danielle Eaddy be assigned to represent him since she represented himduring the investigations for both the Queens County and Kings County matters, andduring the Kings County trial. The defendant's then-assigned counsel, Michael Siff,argued as follows: "MR. SIFF: Your Honor, . . . [the defendant] wasrepresented by . . . Ms. E[a]ddy, in Brooklyn on the proceedings. . . last year . . . for which he did receive a conviction for aweapons charge only. He is asking that the Court appoint her to represent him. That'swho he prefers. He, in fact, indicated that she was representing him when they pulled himout for different line-ups and other investigative matters and he feels since she wasinvolved in that aspect of the case, she is very well versed with everything that was goingon. Apparently, some witnesses that are in this matter . . . testified in theBrooklyn matter. So he would feel more comfortable if the Court could assign her.
"THE COURT: You want to hire her?
"DEFENDANT: Can't afford it.
"THE COURT: All right. Mr. Siff is assigned pursuant to 18B of the County Law.Application to have this other attorney represent you is denied."
By the time of jury selection, Siff was no longer representing the defendant. At juryselection, the defendant's assigned counsel, Dennis Coppin, declined to adopt thedefendant's pro se motion which sought to have Eaddy substituted for Coppin as defensecounsel. Coppin noted, however, that Eaddy had represented the defendant during thelineups relating to the instant case. The written pro se motion stated that Eaddyrepresented the defendant during lineups, and that she previously cross-examined the"same witnesses at [his] previous trial." The defendant argued that given Eaddy'sfamiliarity with the case, any delay in appointing her would be minimal, and that "[i]n thepast she has indicated that if she is assigned to this case she is ready and willing to takethe assignment." The Supreme Court responded that Eaddy was "some attorney that [ithad] never heard of," and that the defendant's request was "just another dilatory tactic."The court further noted Coppin's work on the case, and denied the defendant's request tosubstitute Eaddy as his counsel.
"An indigent defendant's constitutional right to the assistance of counsel 'is not to beequated with a right to choice of assigned counsel' " (People v Espinal, 10 AD3d326, 329 [2004], quoting People v Sawyer, 57 NY2d 12, 18-19 [1982]; see People v Porto, 16 NY3d93, 99 [2010]). "[H]owever, 'that distinction is significantly narrowed once anattorney-client relationship is established' " (People v Espinal, 10 AD3dat 329, quoting People v Childs, 247 AD2d 319, 325 [1998]; see People vKnowles, 88 NY2d 763, 766-767 [1996]; People v Hall, 46 NY2d 873, 875[1979]). "[O]nce an attorney-client relationship has been formed between assignedcounsel and an indigent defendant, the defendant enjoys a right to [*5]continue to be represented by that attorney as counsel of his[or her] own choosing" (Peoplev Griffin, 92 AD3d 1, 5 [2011], affd 20 NY3d 626 [2013]; see People v Espinal, 10AD3d at 329; see also People v Arroyave, 49 NY2d 264, 270 [1980]). Courtshave recognized that the right of a defendant to be represented at trial by counsel of hisor her own choosing serves critical needs, including the "need for a defendant to bewilling to confide freely and fully in his [or her] attorney so that the channels ofcommunication and advice between counsel and his [or her] client may remainfree-flowing and unobstructed," as well as the considerations that "[m]utual cooperationbetween defendant and counsel is often times a critical prerequisite to effective legalrepresentation," and that "the accused is more likely to harbor a feeling that his [or her]presumed innocence and individual rights were scrupulously protected at trial"(People v Arroyave, 49 NY2d at 270).
"While the right to counsel of choice is qualified, and may cede, under certaincircumstances, to concerns of the efficient administration of the criminal justice system,[the Court of Appeals has] made clear that courts cannot arbitrarily interfere with theattorney-client relationship, and interference with that relationship for purpose of casemanagement is not without limits, and is subject to scrutiny" (People v Griffin, 20NY3d 626, 630 [2013]). "[A] court commits reversible error where it interferes with anestablished attorney-client relationship without making 'threshold findings that [theattorney's] participation would have delayed or disrupted the proceedings, created anyconflict of interest, or resulted in prejudice to the prosecution or the defense' "(People v Espinal, 10 AD3d at 329, quoting People v Knowles, 88 NY2dat 767).
The defendant's claim that the Supreme Court interfered with an establishedattorney-client relationship by failing to assign Eaddy to represent him is different thanthe more common scenario where the court has discharged an indigentdefendant's assigned counsel (see People v Griffin, 92 AD3d 1 [2011]; People v Espinal, 10 AD3d326 [2004]; People v Childs, 247 AD2d 319 [1998]; see also People vHall, 46 NY2d 873 [1979]). Even so, given the facts of this case, including thatEaddy represented the defendant during intertwined investigations of both the KingsCounty and Queens County cases and at trial in the Kings County case, the sameprinciples apply in determining whether the court improperly interfered with anestablished attorney-client relationship.
Since the Supreme Court was informed at the time of arraignment in Queens Countythat the defendant had established an attorney-client relationship with Eaddy in both theKings County and Queens County cases, it was incumbent upon the court to assign her ascounsel unless she was not ready, willing, or able to accept the assignment (seePeople v Jackson, 216 AD2d 323, 324 [1995] [stating that a court should notinterfere with an established attorney-client relationship "where, as here, counsel wasalso representing the defendant on a number of other pending criminal matters"]). At thetime of arraignment, there was no risk that Eaddy's participation would have delayed ordisrupted the proceedings, created any conflict of interest, or resulted in prejudice to theprosecution or the defense. To the contrary, Eaddy's familiarity with the defendant andthe case, as well as the defendant's preference for her as his assigned counsel, wouldmost likely have expedited matters. Indeed, the attorney who was assigned to representthe defendant at the arraignment, Siff, was eventually discharged in March 2011 andreplaced with Coppin, with whom the defendant expressed dissatisfaction and requestedfurther substitution.
Instead of inquiring as to Eaddy's availability at the time of arraignment, the SupremeCourt summarily denied the defendant's request for the constitutionally impermissiblereason that the defendant was too indigent to pay for her services (see generallyGideon v Wainwright, 372 US 335 [1963]; People v Price, 262 NY 410[1933]).
Despite the Supreme Court's error in failing to make proper inquiry regardingdefendant's request to maintain his attorney-client relationship with Eaddy, thedefendant's claim that the court violated his right to counsel of his own choosing cannotbe reviewed on direct appeal for the simple reason that the record discloses noinformation as to whether Eaddy was ready, willing, and able to accept the assignment.Although the defendant suggested in his pro se motion made during jury selection thatEaddy had earlier expressed her willingness to take the assignment, there is nothing inthe record from Eaddy to either corroborate the defendant's assertion, or to otherwisesuggest that she was available to represent the defendant on the scheduled trial date.Since [*6]any such information would be based on matterdehors the record, the defendant's contention cannot be reviewed on direct appeal. In theevent that such information exists, the appropriate vehicle to review the defendant'sallegation that the court violated his right to counsel of his own choosing would be amotion pursuant to CPL 440.10 (see People v Fisher, 121 AD3d 1013, 1014 [2014]; People v Folger, 110 AD3d736, 736 [2013]).
II. Presumption of Innocence
The defendant was deprived of a fair trial because he was compelled to wear thesame prison clothing for three days of jury selection and more than five days of trialtestimony (see Estelle v Williams, 425 US 501 [1976]).
On May 10, 2012, which was the scheduled date for jury selection, the defendantfainted as a result of not receiving his prescribed medication. After inquiring about hiscondition, the Supreme Court asked the defendant, "Do you have any civilian clothes?"The defendant replied, "No." When the court asked if his family brought him anyclothing, the defendant explained that his family was out of state attending to anemergency. The defendant further stated that he did not have any civilian clothes in thefacility where he was being held, but that he "can get clothes." The court then stated asfollows: "All right. The clothing you are wearing right now [there] is no indication onthose cloth[es]; there is no writing at all on that thing you are wearing right now.You look pretty good to me" (emphasis added). The court adjourned the proceedings toallow the defendant to be medically examined or obtain his medication.
On the adjourned date, May 14, 2012, defense counsel indicated that the defendanthad made a pro se motion, which counsel did not adopt, seeking, inter alia, the SupremeCourt's recusal and substitution of counsel, and raising an issue regarding the presence ofuniformed police officers during the trial and their influence upon the jury. As part ofthat pro se motion, defense counsel stated that the defendant had a "complaint" that "hehas a jumpsuit on" and did not have "a suit for the jury." Counsel stated that thedefendant has an "upstate green jacket that he has from the jail in Downstate." Despitehis client's protest, the defense attorney stated that he was prepared to go forward withjury selection. The court noted that "the clothing . . . has no indication thatit's from the Department of Corrections," that "there is no lettering on there," and that itwas "just a plain jumpsuit." The court also noted that the outfit was green and "notorange." The court then clarified that the defendant's outfit was not a jumpsuit, but rather"a shirt and pants." The defendant asked if he could make a record regarding hisobjections, but the court refused to allow further argument, telling the defendant to "talkto [his] attorney about that." Thereafter, the court called the prospective jurors into thecourtroom for jury selection.
Jury selection proceeded on May 14, 15, and 16 with the defendant wearing the sameprison clothing. After the jury was selected, the defendant wore the same prison clothingfor opening statements and testimony on May 16, and for witness testimony on May 17.On May 21, the next trial date, the following colloquy took place: "THE COURT: Mr.Ellis, how is everything?
"DEFENDANT: Not much better. My clothes are still dirty. I got clean underclothes,but everything else is still dirty.
"THE COURT: You have clean underclothes?
"DEFENDANT: Yeah. That's it."
The Supreme Court then asked the prosecutor if he was ready to proceed. Thedefendant wore the same prison clothing on May 21, 22, 23, and 24, during which timenine witnesses testified. Finally, on May 29, the defendant appeared in a civilian suit.Defense counsel told the court that he had provided the suit for his client. The courtinformed counsel that "the [*7]Department of Correctionwould not allow [the defendant] to [wear] it because of its color," and that it "instructedthe court officers that they were to put the suit on him in the pens here so he has a suiton."
"The principle that there is a presumption of innocence in favor of the accused is theundoubted law, axiomatic and elementary, and its enforcement lies at the foundation ofthe administration of our criminal law" (Coffin v United States, 156 US 432, 453[1895]; see Estelle v Williams, 425 US at 503). A defendant is "entitled to appearin court with the dignity and the self-respect of a free and innocent [person]" (Peoplev Roman, 35 NY2d 978, 979 [1975]). Presenting an accused before the jury in prisonattire, which is a continuing visual communication to the jury that the accused requiresincarceration, impairs the presumption of innocence, and operates usually against onlyindigent defendants, which is "repugnant to the concept of equal justice embodied in theFourteenth Amendment" (Estelle v Williams, 425 US at 505-506; see People v Then, 28 NY3d1170, 1172 [2017]; People v Roman, 35 NY2d at 979).
"[A]lthough the State cannot, consistently with the Fourteenth Amendment, compelan accused to stand trial before a jury while dressed in identifiable prison clothes, thefailure to make an objection to the court as to being tried in such clothes, for whateverreason, is sufficient to negate the presence of compulsion necessary to establish aconstitutional violation" (Estelle v Williams, 425 US at 512-513).
Here, the defendant objected to wearing prison garb at jury selection as early as May14, 2012, and then, when given an opportunity, the defendant again protested that hisprison clothing was dirty on May 21, 2012. Thus, the defendant's complaints about hisclothing were sufficient to preserve his claim for appellate review.
Contrary to the Supreme Court's suggestion, there is no rule that clothing constitutesidentifiable prison garb only if it is orange, a jumpsuit, or has markings or writing on itindicating that the defendant is a prisoner. This case is readily distinguishable from People v Then (28 NY3d1170 [2017]), where the defendant's orange correctional pants were purposefullyhidden from the jury during a short span of time, and where the black knitted top wornby the defendant was clearly not identifiable as correctional garb (id. at1171-1172). In stark contrast to the facts of this case, the trial court in Thenstated that it understood the defendant's concerns, made a concerted effort to conceal thedefendant's orange pants from the jury, and arranged for civilian clothes to be deliveredto the defendant for the next day (id. at 1171-1172). This case is alsodistinguishable from cases where the clothing worn by the accused was deemed not to beidentifiable prison garb (cf.People v McFarlane, 96 AD3d 879 [2012]; People v Johnston, 43 AD3d 1273 [2007]).
Here, there is no question that the clothing worn by the defendant was prison-issuedclothing. The defendant wore the same green top and bottom for three days of juryselection and more than five days of trial testimony. Even the Supreme Court describedthe defendant's clothing as "that thing." Based upon the description of the clothes and thefact that the defendant wore the same clothes for at least eight days, a reasonable jurorcould only conclude that the clothing was prison garb. Given the defendant's objection towearing dirty prison clothes, I conclude that he preserved his contention for appellatereview, and that, as a matter of law, he was deprived of a fair trial (see Estelle vWilliams, 425 US 501 [1976]).
III. Right to an ImpartialJury
The judgment of conviction should also be reversed because the Supreme Courterred in denying the defendant's for-cause challenge to a prospective juror. During thethird round of jury selection, the panel of prospective jurors included a father and a son.The son was a sergeant in the New York City Police Department (hereinafter NYPD) andworked in a crime laboratory. He acknowledged knowing two of the police criminalistswho had testified in the Kings County case and were expected to testify in this case.When asked if he would have a problem sitting as a "fair juror," the son replied, "I thinkeveryone would agree. I don't think you guys would pick me." The son was excused withthe consent of both counsel.
[*8] The fatherreported that he was a retired school safety agent employed by the NYPD for 15 years.He acknowledged that his fellow juror son was a sergeant in the NYPD, and that he hada brother who was a retired detective in the NYPD. When asked if he could be fairdespite his employment and familial connections to the NYPD, the father responded, "Ithink so." He assured the Supreme Court that he did not discuss the case with his son andwould not do so, and that he would not credit a police officer's testimony more than anyother witness's testimony.
The defendant challenged the father for cause. His counsel argued, inter alia, asfollows: "I am raising a cause challenge against him because it is my opinion that to havehim on this jury is very unfair to [the defendant]. I realize we did run out of challenges,but this case, I assume, will get some attention at some point. There will be policeofficers in the audience at some point based on flyers that I have seen . . .[indicating] that they plan on attending and the parents of this [slain] officer, which istheir absolute right to attend. Bottom line is with this person being left on the jury. . . I feel that his ability to judge this case fairly and impartially as time goeson and based on his background and his connection to his son, it is his son whosupervises . . . two important witnesses in this case. I am objecting."
"A basic premise of our criminal justice system is that a defendant has the right totrial by an impartial jury" (People v Arnold, 96 NY2d 358, 360 [2001]; seePeople v Branch, 46 NY2d 645, 652 [1979] ["Nothing is more basic to the criminalprocess than the right of an accused to a trial by an impartial jury"]). CPL 270.20 (1) (c)permits, inter alia, a challenge for cause to a prospective juror on the ground that theprospective juror has a preexisting relationship to the defendant, the victim, a prospectivewitness, or counsel that "is likely to preclude [him or her] from rendering an impartialverdict" (see People vFurey, 18 NY3d 284, 287 [2011]). "This is referred to colloquially as an'implied bias' that requires automatic exclusion from jury service regardless of whetherthe prospective juror declares that the relationship will not affect [his or her] ability to befair and impartial" (id. at 287 [citation omitted]; see People v Rentz, 67NY2d 829, 831 [1986]; People v Branch, 46 NY2d at 650). Such bias "cannot becured with an expurgatory oath" because the risk of prejudice arising out of therelationship itself is so great that it "creates the perception that the accused might notreceive a fair trial before an impartial finder of fact" (People v Furey, 18 NY3d at287; see People v Branch, 46 NY2d at 651).
Thus, the Court of Appeals has "advised trial courts to exercise caution in thesesituations by leaning toward 'disqualifying a prospective juror of dubiousimpartiality' " (People v Furey, 18 NY3d at 287, quoting People vBranch, 46 NY2d at 651), rather than "testing the bounds of discretion by permittingsuch a juror to serve" (People v Branch, 46 NY2d at 651). In determiningwhether a prospective juror's relationship with potential witnesses or interested partyrequires disqualification for cause as a matter of law, the court should evaluate thefrequency of contact and nature of the relationships (see People v Furey, 18NY3d at 287; People v Rentz, 67 NY2d at 830).
In the exercise of caution, the Supreme Court should have granted the defendant'sfor-cause challenge to the prospective juror. This trial followed a Kings County trial inwhich the defendant had been acquitted of murder and attempted murder arising from theshooting of two NYPD officers, one of whom was killed. Given the close temporalproximity of the criminal conduct underlying both cases, the investigations wereintertwined, and it was expected that both trials would involve many of the samewitnesses. The trials of both cases were well publicized. Uniformed police officers andthe family of the slain officer were expected to be in attendance in this trial as they hadbeen in the Kings County case. Indeed, defense counsel informed the court that heobserved flyers urging uniformed police officers to attend the subject trial. Theprospective juror's son, a sergeant in the NYPD, acknowledged his work relationshipwith two NYPD criminalists who testified in the Kings County case and were expectedto testify in this case. The prospective juror himself was a retired employee of the NYPD,and his brother was a retired detective in the NYPD.
Given all of the circumstances, including (1) the prospective juror's employment andfamilial relationships with the NYPD, (2) the allegations in the Kings County case thatthe defendant was involved in the shooting death of an NYPD officer and the attemptedmurder of another police [*9]officer, and (3) that theprospective juror's son, in effect, disqualified himself based upon his workingrelationship with two criminalists who were expected to testify in this trial, it should havebeen apparent that seating the prospective juror would create "the perception that theaccused might not receive a fair trial before an impartial finder of fact" (People vFurey, 18 NY3d at 287; see People v Branch, 46 NY2d at 651; People v Montford, 145 AD3d1344, 1348 [2016]).
Since the defense had exhausted its peremptory challenges, the Supreme Court'serroneous denial of the defendant's challenge for cause constitutes reversible error(see CPL 270.20 [2]; People v Hamilton, 127 AD3d 1243, 1247[2015]).
IV. Summary
Although the Supreme Court erred in failing to conduct a proper inquiry with respectto the defendant's request to have Eaddy assigned to represent him, the defendant's claimthat his right to counsel of his own choosing was violated cannot be reviewed on directappeal since the record discloses no information that Eaddy was ready, willing, and ableto represent him.
Nonetheless, the presumption of innocense was impaired when the Supreme Courtcompelled the defendant to appear before the jury in prison garb, and the court deprivedthe defendant of his right to an impartial jury by erroneously denying his challenge forcause to a prospective juror. The court's dismissive treatment of the defendant'saforementioned concerns and the cursory denial of his objections lead me to theconclusion that not only was the defendant deprived of a fair trial, but that he should betried again before a different Justice. "The right to a fair trial is self-standing and proof ofguilt, however overwhelming, can never be permitted to negate this right" (People vCrimmins, 36 NY2d 230, 238 [1975]).
Accordingly, I vote to reverse the judgment, on the law, and remit the matter to theSupreme Court, Queens County, for a new trial before a different Justice.