Opinion
1997-08883
Argued June 17, 2002.
September 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered August 12, 1997, convicting him of assault in the first degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence.
Andrew C. Fine, New York, N.Y. (Mitchell J. Briskey of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Richard Ng of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant argues that the Supreme Court committed reversible error when it failed to excuse a juror for cause. We agree.
This case involves the wounding of a young child during the course of a shootout that allegedly took place between the defendant and one or two unknown persons on 105th Street in Queens. During the voir dire, after the court asked if any prospective juror had any concerns, prospective juror number two is revealed to the court at a sidebar conference on the record that he was adopting a young child who had been abused. He then appeared to indicate that instead of judging this case on its merits, he might react to what had happened to his adoptive child. He further indicated that he hoped this would not make a difference in his deliberations. While prospective juror number two subsequently indicated that he could be fair and would base his decision only upon the evidence and the law as the judge gave it, at the same time, he did not unequivocally indicate that he would be able to ignore what he had stated at the sidebar regarding his concerns about his adoptive child.
The court later denied the defendant's challenge for cause as to prospective juror number two forcing the defendant to use a peremptory challenge to have him excused. The defendant ultimately used all of his peremptory challenges.
Where, when considered in the context of a prospective juror's overall responses, there remains any doubt as to the ability of a prospective juror to be impartial, the prospective juror should be discharged for cause (see People v. Blyden, 55 N.Y.2d 73, 78; People v. Light, 260 A.D.2d 404; People v. White, 260 A.D.2d 413). In our view, the responses of prospective juror number two indicated that he had a state of mind likely to preclude him "from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL 270.20[b]; see People v. Torpey, 63 N.Y.2d 361). Moreover, his further responses did not unequivocally show that he would not be influenced by his feelings, nor did he exhibit a freedom from bias. Because the defense counsel exercised a peremptory challenge against prospective juror number two, and also exhausted his allotment of peremptory challenges, this error cannot be considered harmless. Thus, the defendant's conviction must be reversed and the matter remitted for a new trial (see People v. Johnson, 94 N.Y.2d 600; People v. Hewitt, 189 A.D.2d 781; People v. Maddox, 175 A.D.2d 183; cf. People v. Chambers, 97 N.Y.2d 417; People v. White, 266 A.D.2d 412; People v. Harris, 247 A.D.2d 630).
The defendant's remaining contentions are either without merit or need not be reached in light of this determination.
FLORIO, J.P., S. MILLER, TOWNES and COZIER, JJ., concur.