Opinion
March 21, 2001.
Appeal from Judgment of Supreme Court, Onondaga County, Hafner, Jr., J. — Murder, 2nd Degree.
PRESENT: PIGOTT, JR., P. J., GREEN, WISNER, KEHOE AND BURNS, JJ.
Judgment affirmed.
Memorandum:
Supreme Court properly rejected defendant's Batson claim. Defendant failed to present a prima facie case by establishing the existence of "facts and other relevant circumstances sufficient to raise an inference that the prosecution exercised its peremptory challenges to exclude potential jurors because of their race" ( People v. Childress, 81 N.Y.2d 263, 266; see also, People v. Cousin, 272 A.D.2d 477, 478, lv denied 95 N.Y.2d 851), and thus the burden never shifted to the prosecutor to provide a race-neutral reason for the challenge ( see, People v. Childress, supra, at 266).
The court did not abuse its discretion in denying defendant's challenges for cause to three jurors. The first juror at issue stated during questioning by defense counsel that she believed that defense counsel was hired to prove defendant's innocence and that she would expect defense counsel to prove that defendant did not commit the crimes. Her answers, however, do not indicate actual bias or otherwise indicate that she possessed a state of mind that would prevent her from rendering an impartial verdict based on the evidence at trial ( see, People v. Wiegert, 248 A.D.2d 929, lv denied 91 N.Y.2d 1014; People v. Madison, 230 A.D.2d 807, lv denied 89 N.Y.2d 925). The fact that a juror expresses the opinion that defendant must prove his innocence does not require that juror's automatic exclusion for cause; "the mere existence of any preconceived notion as to guilt or innocence is insufficient to rebut the presumption of impartiality" ( People v. Butts, 140 A.D.2d 739, 740; see, People v. Brzezicki, 249 A.D.2d 917, 918; People v. Smyers, 167 A.D.2d 773, lv denied 77 N.Y.2d 967). Here, the juror, upon questioning by the court, answered affirmatively that she could accept the presumption of innocence. Her answers to defense counsel's questions do not indicate that she would be unable to follow the court's instructions in that regard ( cf., People v. Brzezicki, supra, at 918-919).
When asked whether he would "hold it against defendant" if defendant did not testify, the second juror at issue stated that it might influence him adversely because he would like to hear "every side of the story". The fact that a juror expresses a preference that defendant testify does not demonstrate actual bias ( see, People v. Rudolph, 266 A.D.2d 568, 568-569, lv denied 94 N.Y.2d 906; People v. Hernandez, 222 A.D.2d 696, 696-697, lv denied 88 N.Y.2d 879, 986; People v. Archer, 210 A.D.2d 241, lv denied 84 N.Y.2d 1028; People v. Lee, 193 A.D.2d 759, 760, lv denied 82 N.Y.2d 721).
The third juror at issue stated that he had heard a radio report that there had been a pretrial ruling in this case, but did not know the facts upon which it was based. The fact that a juror may have heard a news report about a case does not, by itself, disqualify the juror ( see, People v. Taylor, 97 A.D.2d 983, 984). The juror indicated that, despite what he had heard on the radio, he could limit his decision to the proof he heard in the courtroom. Under those circumstances, the court did not abuse its discretion in denying the challenge for cause.
Finally, the court did not abuse its discretion in requiring defendant to be escorted by a deputy to sidebar conferences with potential jurors ( see, People v. Vargas, 88 N.Y.2d 363, 376-377).
We respectfully dissent. Each of the three jurors challenged for cause by defendant revealed "knowledge or opinions reflecting a state of mind likely to preclude impartial service" ( People v. Johnson, 94 N.Y.2d 600, 614; see, CPL 270.20 [b]). Upon further questioning, the challenged jurors did not give "unequivocal assurance that they [could] set aside any bias and render an impartial verdict based on the evidence" ( People v. Johnson, supra, at 614). Therefore, Supreme Court erred in denying defendant's challenges for cause and, because defendant exhausted his peremptory challenges prior to the completion of jury selection, reversal and a new trial are required ( see, People v. White, 275 A.D.2d 913, 914).