Opinion
November 24, 1998
Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department of Monroe County; Harold L. Galloway, J.
Submitted by Barbara S. Greathead, for appellant.
Submitted by Elizabeth Clifford, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant's argument that the trial court should have used the "grossly unqualified" standard contained in CPL 270.35 in determining whether the subject juror should be discharged is unpreserved for appellate review, having been raised for the first time in support of defendant's motion to set aside the verdict ( see, People v. Laraby, ___ N.Y.2d ___, [decided 10-15-98]; People v. Lawrence, 85 N.Y.2d 1002, 1005). Applying the "for cause" standard of CPL 270.20 (1)(b), which defendant conceded in the pre-trial colloquy was the applicable standard, the trial court did not err as a matter of law in discharging the subject juror. On this record, we agree with the majority at the Appellate Division that we should defer to the assessment of the trial court — which had the advantage of observing the juror's overall demeanor and body language — that the juror had "a state of mind that [was] likely to preclude [her] from rendering an impartial verdict" (CPL 270.20[b]).
We also agree with the Appellate Division majority that the record supports the trial court's refusal to permit a defense witness to testify regarding the out of court statements of another person. The trial court correctly concluded that these statements were hearsay and defendant did not meet his burden of showing that the declarant was aware at the time he made the statements that they were against his penal interests ( cf., People v. Fields, 66 N.Y.2d 876, 877-878).
In addition, careful parsing of the various parts of the declarant's statements is required, and those portions of the declarant's statement that arguably support defendant's duress defense were not against the declarant's penal interest when made and thus were not admissible ( see, People v. Brensic, 70 N.Y.2d 9, 16, remittitur amended 70 N.Y.2d 722; People v. Thomas, 68 N.Y.2d 194, 198, cert denied 480 U.S. 948).
We have examined defendant's remaining contentions and conclude that they are either unpreserved or without merit.
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Wesley concur.