Opinion
1037 KA 19-01650
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Don LEWIS, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted. Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). Defendant contends that Supreme Court erred in denying his challenge for cause to a prospective juror whose statements during voir dire cast doubt on the prospective juror's ability to be impartial. We agree.
It is well established that " ‘[p]rospective jurors who make statements that cast serious doubt upon their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused’ " ( People v . Mitchum , 130 A.D.3d 1466, 1467, 12 N.Y.S.3d 749 [4th Dept. 2015] ; see People v . Warrington , 28 N.Y.3d 1116, 1119-1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 [2016] ; People v . Clark , 171 A.D.3d 1530, 1530, 99 N.Y.S.3d 174 [4th Dept. 2019] ). Here, the statement of a prospective juror during voir dire with respect to the credibility of the testimony of police officers or bias in favor of the police cast serious doubt on his ability to render an impartial verdict, and that prospective juror failed to provide " ‘unequivocal assurance that [he could] set aside any bias and render an impartial verdict based on the evidence’ " ( Mitchum , 130 A.D.3d at 1467, 12 N.Y.S.3d 749 ; see People v . Nicholas , 286 A.D.2d 861, 861-862, 731 N.Y.S.2d 99 [4th Dept. 2001], affd 98 N.Y.2d 749, 751 N.Y.S.2d 820, 781 N.E.2d 884 [2002] ; People v . Lewis , 71 A.D.3d 1582, 1583, 896 N.Y.S.2d 792 [4th Dept. 2010] ).
In light of our determination, we do not address defendant's remaining contentions.