Opinion
2012-05-30
The PEOPLE, etc., respondent, v. Jerrell HEWITT, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Guidice, J.), rendered May 25, 2010, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
A prospective juror may be challenged for cause on the ground that “[h]e [or she] has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20[1][b] ). “[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” ( People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;see People v. Arnold, 96 N.Y.2d 358, 362, 729 N.Y.S.2d 51, 753 N.E.2d 846). “Where a prospective juror offers such assurances, the trial court has discretion to deny the challenge for cause if it determines that the juror's promise to be impartial is credible” ( People v. Johnson, 40 A.D.3d 1011, 1011–1012, 837 N.Y.S.2d 222;see People v. Arnold, 96 N.Y.2d at 363, 729 N.Y.S.2d 51, 753 N.E.2d 846). Here, although the subject prospective juror initially indicated that he had a bias in favor of the testimony of police officers, he provided two unequivocal assurances that he could follow the Supreme Court's instructions on assessing the credibility of witnesses and render an impartial verdict based solely on the evidence produced at trial. Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's challenge for cause ( see People v. Mercereau, 84 A.D.3d 1270, 924 N.Y.S.2d 118;People v. Johnson, 40 A.D.3d 1011, 837 N.Y.S.2d 222;People v. Rolle, 4 A.D.3d 542, 771 N.Y.S.2d 704).
However, a new trial is required because the defendant was deprived of the effective assistance of counsel. “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure” ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698). Recognizing that in evaluating the defendant's claim we must “avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” ( People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400), we nevertheless conclude that the defendant has satisfied that standard here. Contrary to the People's contention, the defendant demonstrated that there was no strategic or other legitimate explanation for defense counsel opening the door for the admission into evidence of a photo array identification of the defendant, which would not otherwise have been admissible, and which served to bolster the reliability of the in-court identification by the People's witness ( see People v. Gavalo, 87 A.D.3d 1014, 929 N.Y.S.2d 321;People v. Jeannot, 59 A.D.3d 737, 875 N.Y.S.2d 114;People v. Lindo, 167 A.D.2d 558, 562 N.Y.S.2d 229;People v. Barnes, 70 A.D.2d 882, 417 N.Y.S.2d 106;cf. People v. Pennington, 27 A.D.3d 269, 270, 811 N.Y.S.2d 36;People v. Taylor, 300 A.D.2d 746, 748, 751 N.Y.S.2d 662;People v. Silvestre, 279 A.D.2d 364, 365, 719 N.Y.S.2d 248).
Since the defendant was deprived of a fair trial by the ineffectiveassistance of his counsel, the judgment must be reversed and a new trial ordered.