Decided November 15, 2001.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered March 21, 2001, which affirmed a judgment of the Supreme Court (Walter W. Hafner, Jr., J.), rendered in Onondaga County upon a verdict convicting defendant of murder in the second degree.
Shirley K. Duffy, for appellant.
James P. Maxwell, for respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
The order of the Appellate Division should be reversed and a new trial ordered.
Criminal Procedure Law § 270.20(1)(b) provides that a party may challenge a prospective juror for cause if the juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence at the trial." Upon such a challenge "a juror who has revealed doubt, because of prior knowledge or opinion, about [his or] her ability to serve impartially must be excused unless the juror states unequivocally on the record that [he or] she can be fair" (People v. Arnold, 96 N.Y.2d 358, 362).
In this case, the trial court erred in denying defendant's challenges for cause as to two prospective jurors. Earlier, the court instructed the panel of prospective jurors as to the presumption of defendant's innocence, the People's burden of proof and defendant's right not to testify. Nonetheless, in response to defense counsel's questioning, one prospective juror indicated that she would require defense counsel to prove defendant's innocence in order for her to return a verdict of not guilty. Another prospective juror stated that defendant's failure to testify might influence his decision and "make it a little hard for [him] to say that [defendant was] not guilty." Having heard these answers, the trial court took no corrective action, either before or after the defense interposed proper challenges for cause, which were denied. Defendant then peremptorily challenged both prospective jurors and exhausted all of his peremptory challenges during the course of the voir dire (see, CPL 270.20).
We conclude that the prospective jurors' statements cast serious doubt on their ability to render a fair verdict under the proper legal standards. The trial court therefore was required to elicit some unequivocal assurance from the two prospective jurors that they were able to reach a verdict based entirely upon the court's instructions on the law. The jury panel's earlier collective acknowledgment that they would follow the court's instructions was insufficient to constitute such an unequivocal declaration (see, People v. Arnold, supra, 96 N.Y.2d, at 363).
Order reversed and a new trial ordered, in a memorandum.