Opinion
July 31, 1995
Appeal from the Supreme Court, Queens County (Goldstein, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err when it refused to grant defense counsel's challenge regarding a prospective juror for cause. Pursuant to CPL 270.20 (1) (b) a party may challenge a prospective juror for cause on the ground, inter alia, that "[s]he has a state of mind that is likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced at trial". A challenge for cause under CPL 270.20 is based upon allegations of actual bias (see, People v. Torpey, 63 N.Y.2d 361, 366; People v. Archer, 210 A.D.2d 241; Preiser, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 11A, CPL 270.20, at 425).
In the case at bar, the juror's responses to defense counsel's inquiries did not rise to the level of actual bias or otherwise indicate that she would be unable to render an impartial verdict. Accordingly, there was no need to administer an expurgatory oath to the juror since no actual bias was demonstrated and after inquiry by the court, the juror indicated that she would follow the law. Under such circumstances, the court properly refused to excuse this juror for cause (see, People v Burns, 169 A.D.2d 773; cf., People v. Torpey, 63 N.Y.2d 361, supra; People v. Brown, 111 A.D.2d 248). Moreover, the defendant did not exhaust his peremptory challenges and was therefore not prejudiced by having had to use a peremptory challenge to excuse the juror in question (see, People v. Hewitt, 189 A.D.2d 781).
The court's statements during the defense counsel's questioning of witnesses and during proceedings outside the presence of the jury were proper. During both the witness examinations and arguments on motions, the defense counsel repeatedly challenged the court's rulings, provoking the court's comments that either she control her behavior or she would be held in contempt. Thus, the court's comments were the result of the defense counsel's tactics and did not constitute error (see, People v. Gonzalez, 38 N.Y.2d 208; People v. Cephas, 207 A.D.2d 903; People v. Meade, 198 A.D.2d 307).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Thompson, J.P., Pizzuto, Santucci and Florio, JJ., concur.