Opinion
2019-595 Q CR
04-01-2022
The People of the State of New York, Respondent, v. Ian Oleary, Appellant.
Appellate Advocates (Chelsea Lopez of counsel), for appellant. Queens County District Attorney (Johnnette Traill, Ellen C. Abbot and Jessica Coalter of counsel), for respondent.
Unpublished Opinion
Appellate Advocates (Chelsea Lopez of counsel), for appellant.
Queens County District Attorney (Johnnette Traill, Ellen C. Abbot and Jessica Coalter of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Jerry M. Iannece, J.), rendered February 28, 2019. The judgment convicted defendant, upon a jury verdict, of obstructing governmental administration in the second degree and resisting arrest, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Following a jury trial, defendant was convicted of obstructing governmental administration in the second degree (Penal Law § 195.05) and resisting arrest (Penal Law § 205.30). On appeal, defendant contends that the Criminal Court erred when it denied his counsel's challenges to two prospective jurors for cause and when it denied his counsel's request for a missing witness charge pertaining to the emergency medical technicians (EMTs) who were present during a portion of the subject incident.
The record demonstrates that, when the court denied defendant's challenges for cause to excuse two prospective jurors, defense counsel exercised peremptory challenges to those two prospective jurors and, subsequently, exhausted his peremptory challenges before the completion of jury selection. Consequently, defendant's claims pertaining to those two prospective jurors are preserved for appellate review (see CPL 270.20 [2]; 360.25 [2]).
"A challenge for cause is an objection to a prospective member of the jury and may be made only on the ground that... [the prospective juror] has a state of mind that is likely to preclude [the juror] from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL 360.25 [1] [b]). However, a prospective juror with a purported actual bias need not be discharged if that juror can provide the trial court with an "unequivocal assurance" that he or she can be fair and impartial by setting aside any bias and render an impartial verdict based on the evidence (People v Patterson, 34 N.Y.3d 1112, 1113 [2019], quoting People v Wright, 30 N.Y.3d 933, 944 [2017]; see People v Johnson, 17 N.Y.3d 752 [2011]; People v Johnson, 94 N.Y.2d 600, 614 [2000]; People v Branch, 46 N.Y.2d 645, 651 [1979]). What constitutes an unequivocal assurance will often rest on the totality and context of the prospective juror's statements and the trial court's evaluation of those statements and of the credibility of the juror (see People v Warrington, 28 N.Y.3d 1116, 1120 [2016]; Johnson, 94 N.Y.2d at 615; People v Torpey, 63 N.Y.2d 361, 368 [1984]; People v Blyden, 55 N.Y.2d 73, 78 [1982]). Once a prospective juror gives that unequivocal assurance, "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 Arnold, 96 N.Y.2d 358, 363 [2001]; see People v Williams, 63 N.Y.2d 882, 884-885 [1984]).
Viewing the complained-of statements of the two prospective jurors challenged for cause in context and as a whole, we find that neither of them expressed actual bias (see Patterson, 34 N.Y.3d at 1113; Warrington, 28 N.Y.3d at 1120; Arnold, 96 N.Y.2d at 363; Johnson, 94 N.Y.2d at 615). Rather, in response to direct questions from defense counsel, they gave general opinions, shared by other potential jurors on the panel, which did not contradict their prior affirmations of impartiality to the court nor implicate their abilities to discharge their responsibilities as jurors. Moreover, the totality of their statements revealed that they could follow the court's instructions and be fair and impartial (see People v Shulman, 6 N.Y.3d 1, 28 [2005]; People v Chambers, 97 N.Y.2d 417, 419 [2002]; Arnold, 96 N.Y.2d at 363; Blyden, 55 N.Y.2d at 78). While the better procedure would have been to do follow-up questioning of those jurors, under the particular circumstances presented, we find no error here (see People v Moses, 177 A.D.3d 619, 622-623 [2019]).
The proponent of a missing witness charge, which allows the factfinder "to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events" (People v Savinon, 100 N.Y.2d 192, 196 [2003]), must demonstrate, upon a prompt request for the charge: (1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, (2) that such witness can be expected to testify favorably to the opposing party, and (3) that such party has failed to call the witness to testify (see People v Smith, 33 N.Y.3d 454, 458-459 [2019]; People v Gonzalez, 68 N.Y.2d 424, 427 [1986]). We find that defendant, as the proponent of a missing witness charge pertaining to the EMTs who were not called by the People to testify at trial, met his initial burden.
The People were then required to rebut that showing by establishing why the charge was inappropriate (see Smith, 33 N.Y.3d at 460), which they did by demonstrating, among other things, that the testimony would have been cumulative to that of the four police officers who were eyewitnesses to the incident and present on the scene before the EMTs arrived (see Smith, 33 N.Y.3d at 459; People v Edwards, 14 N.Y.3d 733 [2010]; People v Keen, 94 N.Y.2d 533, 539 [2000]; Gonzalez, 68 N.Y.2d at 428; People v Rosas, 58 Misc.3d 160 [A], 2018 NY Slip Op 50286[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Testimony is properly precluded as cumulative when it would neither contradict nor add to that of other witnesses (see People v Macana, 84 N.Y.2d 173, 180 [1994]; People v Corger, 63 Misc.3d 136[A], 2019 NY Slip Op 50495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, the People need not "call... every witness to a crime or... make a complete and detailed accounting to the defense of all law enforcement investigatory work" (People v Buckler, 39 N.Y.2d 895, 897 [1976] [internal quotation marks omitted]; see also People v Watts, 58 A.D.3d 647 [2009]; People v Noel, 61 Misc.3d 129 [A], 2018 NY Slip Op 51393[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
If the party opposing the charge meets its burden by rebutting the prima facie showing, the proponent retains the ultimate burden to show that the charge would be appropriate (see Smith, 33 N.Y.3d at 459; Gonzalez, 68 N.Y.2d at 427; Savinon, 100 N.Y.2d at 197). Contrary to defendant's contention, the officers' testimony was generally consistent and any differences in their testimony can best be explained by their different vantage points. Moreover, we find that there is nothing in the record to suggest that the missing witnesses possessed information about the incident that would have so materially added to or contradicted the testimony of the People's witnesses as to render it noncumulative (see People v Almodovar, 62 N.Y.2d 126, 133 [1984]; People v Olson, 162 A.D.3d 1249 [2018]). Consequently, the Criminal Court properly denied the missing witness charge (see Smith, 33 N.Y.3d at 458 [finding that a missing witness charge is appropriate when three conditions are met: (1) the witness's knowledge must be material to the trial, (2) the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought, and (3) the witness must be available to that party]; Savinon, 100 N.Y.2d at 197). We note that not only did defendant have the opportunity to call the EMTs as his witnesses and chose not to do so (see Buckler, 39 N.Y.2d at 897), but the record demonstrates that, during summation, defense counsel commented on the fact that the People had failed to call them.
Accordingly, the judgment of conviction is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.