Opinion
February 24, 1976
Present — Marsh, P.J., Cardamone, Simons, Mahoney and Witmer, JJ.
Motion for change of venue denied. Memorandum: The defendant stands accused of assaulting five guards at the Attica Correctional Facility and has moved for a change of venue from Wyoming County. In support of his application, the defendant furnished the court with a sociological survey based on 114 telephone interviews selected by computer at random within Wyoming County. The issue which we consider most troublesome is the alleged high percentage of potential jurors who had family members or friends employed at Attica Correctional Facility. Although it may well develop that responses of potential jurors upon voir dire will reveal partiality as a matter of law (Irwin v Dowd, 366 U.S. 717, 722-723), we are unable to conclude that the moving papers, including the survey results, sufficiently demonstrate at the present time that a fair and impartial trial cannot be had in Wyoming County (People v DiPiazza, 24 N.Y.2d 342). "Until the study's conclusions can be tested in the context of the voir dire examination, the relief requested in the application before us is premature." (People v Sekou, 45 A.D.2d 982, 984.)