Opinion
2011-1114 N CR
07-24-2014
The PEOPLE of the State of New York, Respondent, v. Michael GIULIANI, Appellant.
Kathleen M. Rice, District Attorney, Mineola (Donald Berk and Tammy J. Smiley of counsel), for respondent. Mitchell Dranow, Sea Cliff, for appellant.
Kathleen M. Rice, District Attorney, Mineola (Donald Berk and Tammy J. Smiley of counsel), for respondent.
Mitchell Dranow, Sea Cliff, for appellant.
Present: IANNACCI, J.P., MARANO and TOLBERT, JJ.
Opinion
Appeal from a judgment of the District Court of Nassau County, First District (Andrew M. Engel, J.), rendered April 1, 2011. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated.ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for a new trial.
On July 31, 2007, the People charged defendant, by a simplified traffic information, with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192[2] ) based on a blood alcohol test result of .14 of one per centum by weight. In the course of jury selection, defendant sought to excuse for cause a registered nurse based on her statements to the effect that, when evaluating the evidence, in particular with respect to “medical” issues, as a matter of “integrity,” she could not disregard her knowledge of dehors-the-record facts she believed to be true. The prospective juror also indicated that such considerations would guide her review of the evidence even if the court instructed her that she must “separate” the criteria of factfinding and the conclusions of law to be drawn therefrom from her own personal knowledge and training. The District Court curtailed defense counsel's attempts to explore this issue with the prospective juror and denied the application. The defense then utilized its last peremptory challenge to excuse the prospective juror, before jury selection had been completed. On appeal, defendant argues, among other things, that the denial of his application to excuse the prospective juror for cause deprived him of a fair trial. We agree and reverse.
As defendant used his last peremptory challenge to excuse the prospective juror before jury selection was completed, a wrongful denial of his request that she be excused for cause constitutes reversible error (see CPL 270.20[2] ; People v. Wilson, 7 A.D.3d 549, 550, 776 N.Y.S.2d 98 [2004] ; People v. White, 260 A.D.2d 413, 414, 688 N.Y.S.2d 565 [1999] ). A prospective juror must be excused for cause when he or she “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” (CPL 360.25[1][b] ; People v. Arnold, 96 N.Y.2d 358, 366, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ). A juror's failure to state persuasively that he or she would follow the court's instructions on the law, whatever his or her own views and beliefs as to its nature, implicates partiality (Arnold, 96 N.Y.2d at 368, 729 N.Y.S.2d 51, 753 N.E.2d 846 ; People v. Lynch, 95 N.Y.2d 243, 248, 715 N.Y.S.2d 691, 738 N.E.2d 1172 [2000] ; People v. Boulware, 29 N.Y.2d 135, 141–142, 324 N.Y.S.2d 30, 272 N.E.2d 538 [1971] ; People v. Bryant, 93 A.D.3d 1344, 1344, 941 N.Y.S.2d 426 [2012] ). Moreover, an improper curtailment of a defendant's opportunity to determine whether a prospective juror is “fit and competent to perform fairly and impartially” is also reversible error (People v. Shulman, 6 N.Y.3d 1, 27, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005] [internal quotation marks omitted] ).
The risk that a potential juror might “take the role” of an expert witness (Arnold, 96 N.Y.2d at 366, 729 N.Y.S.2d 51, 753 N.E.2d 846 ) and draw upon his or her “personal professional expertise” and knowledge of facts not in evidence to influence his or her own deliberations and those of the remaining jurors as well (People v. Maragh, 94 N.Y.2d 569, 574, 708 N.Y.S.2d 44, 729 N.E.2d 701 [2000] ) must be avoided either through rehabilitation or excusing the juror for cause. We recognize that a trial court has “broad discretion” to control the scope of voir dire (People v. Pepper, 59 N.Y.2d 353, 358, 465 N.Y.S.2d 850, 452 N.E.2d 1178 [1983] ) and that the determination of a prospective juror's fitness to serve is “committed largely to [the] judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation” (People v. Williams, 63 N.Y.2d 882, 885, 483 N.Y.S.2d 198, 472 N.E.2d 1026 [1984] ). Nevertheless, while “most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box” (id.; see also Arnold, 96 N.Y.2d at 364, 729 N.Y.S.2d 51, 753 N.E.2d 846 ), where, as here, the prospective juror's statements during voir dire “cast serious doubt on [her] ability to render a fair verdict under the proper legal standards,” the trial court was obligated, at the very least, to “remind[ ] and caution[ ] her that she was required to decide the case solely on the evidence presented” (Arnold, 96 N.Y.2d at 366, 729 N.Y.S.2d 51, 753 N.E.2d 846 ) and to obtain her “unequivocal assurance” (People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ) that her “prior state of mind would not influence her verdict” (People v. Borges, 90 A.D.3d 1067, 1068, 935 N.Y.S.2d 621 [2011] ) and that she would render “an impartial verdict based solely on the evidence” (People v. Harris, 23 A.D.3d 1038, 803 N.Y.S.2d 854 [2005] ) and “based entirely upon the court's instructions on the law' ” (Bryant, 93 A.D.3d at 1344, 941 N.Y.S.2d 426, quoting People v. Bludson, 97 N.Y.2d 644, 646, 736 N.Y.S.2d 289, 761 N.E.2d 1016 [2001] ). The failure to have done so is reversible error (Arnold, 96 N.Y.2d at 368, 729 N.Y.S.2d 51, 753 N.E.2d 846 ; Lynch, 95 N.Y.2d at 248, 715 N.Y.S.2d 691, 738 N.E.2d 1172 ; Boulware, 29 N.Y.2d at 141–142, 324 N.Y.S.2d 30, 272 N.E.2d 538 ).Not only is the record devoid of such judicial inquiry, but defense counsel was not permitted to undertake an adequate inquiry of his own. The defense is entitled to a “fair opportunity ... to question [prospective jurors] about matters ... which are relevant and material to the inquiry at hand' ” (People v. Porter, 226 A.D.2d 275, 276, 641 N.Y.S.2d 283 [1996], quoting Boulware at 140, 324 N.Y.S.2d 30, 272 N.E.2d 538 ; see also People v. Jean, 75 N.Y.2d 744, 745, 551 N.Y.S.2d 889, 551 N.E.2d 90 [1989] ). Where, as here, the defense was not permitted to adequately explore matters that were material to the case and to attempt to elicit sufficient assurances that the prospective juror was qualified to serve, there also is reversible error (e.g. Harris, 23 A.D.3d at 1039, 803 N.Y.S.2d 854 ; People v. De Francesco, 88 A.D.2d 920, 921, 450 N.Y.S.2d 562 [1982] ).
Finally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The testimonies of the People's witnesses were plausible, internally consistent, and collectively coherent. To the extent that the defense witnesses contradicted the People's witnesses as to issues material to proof of the elements of the offense, the jury was presented with the task of evaluating the relative credibilities of all of the witnesses, and, upon this record, it cannot be said that the jury's determination was so unreasonable as to require the finding that the verdict was against the weight of the evidence.
In light of the foregoing, we need not address defendant's remaining claims of error.
Accordingly, the judgment of conviction is reversed and the matter is remitted to the District Court for a new trial.