Opinion
April 22, 1991
Appeal from the County Court, Suffolk County (Mallon, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.
The court did not err in denying the defendant's motion to suppress his oral, written, and videotaped statements to the police.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder (see, People v. Register, 60 N.Y.2d 270, cert denied 466 U.S. 953; People v. Solomon, 172 A.D.2d 781 [decided herewith]; People v. Rammelkamp, 167 A.D.2d 560; see also, Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 125, at 491).
The trial court erred, however, in denying the defendant's challenge for cause to a prospective juror who equivocated as to her ability to be objective and unbiased. During voir dire she informed the court that her son was a member of the Suffolk County Police Department. When asked whether her relationship to her son might affect her ability to be impartial, she replied, "I can't honestly answer that". The court then asked the prospective juror, "[y]ou feel that you can never be swayed?", and she replied, "I never experienced this before. I really don't know, you know, if I would be influenced. I don't know". The record is devoid of any indication that this prospective juror subsequently made an express declaration that her relationship to a law enforcement agent would not affect her ability to be impartial.
Appellate courts have repeatedly cautioned that: "`[T]he trial court should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve. * * *' Even if, through such caution, the court errs and removes an impartial juror, `the worst the court will have done * * * is to have replaced one impartial juror with another impartial juror' (People v. Culhane, 33 N.Y.2d 90, 108, n 3 * * *)" (People v Blyden, 55 N.Y.2d 73, 78; see also, People v. Nicolas, 171 A.D.2d 817). Since the defendant exhausted his peremptory challenges, a new trial is necessary (see, People v. Scott, 170 A.D.2d 627).
In light of the foregoing determination, we decline to reach the defendant's remaining contentions. Lawrence, J.P., Harwood, Rosenblatt and O'Brien, JJ., concur.