Opinion
1076 KA 20-01184
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Sid HARRISON, Defendant-Appellant.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN, NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN, NEW YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, 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 upon a jury verdict of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ), criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]), and two counts of criminally using drug paraphernalia in the second degree (§ 220.50 [1], [3]). Contrary to defendant's contention, County Court properly admitted evidence of his prior uncharged drug sale inasmuch as it was relevant to establish his intent to sell in connection with the crimes charged and its probative value outweighed its prejudicial effect (see People v. Kims , 24 N.Y.3d 422, 439, 999 N.Y.S.2d 337, 24 N.E.3d 573 [2014] ; People v. Credell , 161 A.D.3d 1563, 1564, 75 N.Y.S.3d 409 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 761, 111 N.E.3d 1117 [2018], reconsideration denied 32 N.Y.3d 1110, 91 N.Y.S.3d 361, 115 N.E.3d 633 [2018] ; People v. Whitfield , 115 A.D.3d 1181, 1182, 982 N.Y.S.2d 242 [4th Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [2014] ).
We agree with defendant, however, that the court erred in denying his challenge for cause to a prospective juror whose statements during voir dire cast doubt on his ability to be impartial. "[P]rospective jurors who make statements that cast serious doubt on 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] [internal quotation marks omitted]; 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 the 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 the 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 [internal quotation marks omitted]; 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] ). Specifically, after the prospective juror stated that he was a former correction officer and had "a lot of friends and family members" in law enforcement, he agreed that he would "be inclined to give more credibility to an officer than [he] would a lay person," explained that, based on his experiences, he found police to be "honest people," and specifically described one of the officers who would later testify for the People as "an honest person." Although the court inquired further of the prospective juror, we conclude that the prospective juror's answers to the questions asked by the court were "insufficient to constitute ... an unequivocal declaration" that he could set aside any bias and render an impartial verdict ( Mitchum , 130 A.D.3d at 1467, 12 N.Y.S.3d 749 [internal quotation marks omitted]). Because defendant exercised a peremptory challenge to excuse that prospective juror and thereafter exhausted his peremptory challenges, we must reverse the judgment and grant defendant a new trial (see CPL 270.20 [2] ; People v. Cobb , 185 A.D.3d 1432, 1433, 126 N.Y.S.3d 600 [4th Dept. 2020] ). In light of our determination, we do not address defendant's remaining contentions.