Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. Clevester HEMPHILL, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.
SWEENY, J.P., ACOSTA, MAZZARELLI, MANZANET–DANIELS, WEBBER, JJ.
Judgment, Supreme Court, New York County (Wayne M. Ozzi, J. at jury trial and sentencing; Neil Ross, J. at resentencing), rendered July 12, 2010, as amended July 9, 2015, convicting defendant of two counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of 7 ½ years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning identification and credibility.
Review of defendant's claim that the court improperly granted a challenge for cause by the People is statutorily foreclosed because the People did not exhaust their peremptory challenges (see CPL 270.20[2] ). Although the People initially used up their challenges, they subsequently withdrew one of them, and thus the court's ruling, even if erroneous, did not give the People an extra challenge. In any event, the court providently exercised its discretion in disqualifying a panelist who failed to give an unequivocal assurance that she could render an impartial verdict, uninfluenced by knowledge or expertise derived from her studies (see generally People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ; see also People v. Culhane, 33 N.Y.2d 90, 108 n. 3, 350 N.Y.S.2d 381, 305 N.E.2d 469 [1973] ).
The court's Sandoval ruling balanced the appropriate factors and was a provident exercise of discretion (see People v. Walker, 83 N.Y.2d 455, 458–459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ). With reasonable limitations, the court permitted inquiry into matters that were probative of credibility.