Opinion
July 2, 1976
Present — Marsh, P.J., Moule, Cardamone, Simons and Witmer, JJ.
Motion for change of venue denied. Memorandum: The trial of defendant in Ontario County in April, 1976 on the charge of murder resulted in jury disagreement. The court ordered a new trial to begin on July 6, 1976. Defendant has moved before this court for change of venue on the ground that he cannot receive a fair retrial because of the newspaper publicity attendant upon the first trial, including references to defendant's confession, its admission into evidence, the report that the jury disagreed 11 to 1 and that "the dissenting juror, a woman, clung to her belief there was reasonable doubt of the defendant's guilt". In support of his contention defendant has submitted the results of a sample survey of citizens of Ontario County, showing that one third of those interviewed had formed an opinion as to defendant's guilt or innocence; one-fifth thought that defendant could not receive a fair retrial; and only one-sixth stated that they had no opinion or had not heard of the case. In opposition, the District Attorney submits the results of a separate survey made for him, somewhat larger than that made by defendant, which shows that 90% of those canvassed believed that defendant can receive a fair retrial in Ontario County; nearly two-thirds were unaware that the first trial ended in disagreement by the jury; and over two-thirds indicated that they had not formed an opinion as to defendant's guilt or innocence. "It has long been settled that, to entitle a defendant to removal of a criminal action to another county because of pretrial publicity (or for any other reason), it must appear that he cannot obtain a fair and impartial trial in the county where the indictment is pending" (People v Di Piazza, 24 N.Y.2d 342, 347). "We are unable to conclude that the moving papers, including the survey results [submitted by both the defendant and the District Attorney], sufficiently demonstrate at the present time that a fair and impartial trial cannot be had in [Ontario] County" (People v Gray, 51 A.D.2d 889), and we deem the application premature (People v Gray, supra; People v Hallett Parish, 43 A.D.2d 793).