Opinion
2017–05509 Ind.No. 1958/16
06-17-2020
The PEOPLE, etc., Respondent, v. Robert ROJAS, Appellant.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Anjali Biala of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry A. Schwartz, J.), rendered April 25, 2017, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is reversed, on the law and the facts, and a new trial is ordered.
The defendant was charged with crimes arising from a residential burglary. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of burglary in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
We reverse the judgment of conviction on the ground that the Supreme Court erroneously denied the defendant's challenge for cause to a prospective juror. The evidence in the record established that the prospective juror evinced "a state of mind that [was] likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced at the trial" ( CPL 270.20[1][b] ). Taking the prospective juror's responses as a whole (see People v. Blyden, 55 N.Y.2d 73, 78, 447 N.Y.S.2d 886, 432 N.E.2d 758 ), she did not express the personal, unequivocal assurance of impartiality needed to cure her prior indication that she was predisposed to believe the testimony of a police officer (see People v. Arnold, 96 N.Y.2d 358, 364, 729 N.Y.S.2d 51, 753 N.E.2d 846 ; People v. Thigpen, 277 A.D.2d 261, 715 N.Y.S.2d 74 ). As no unequivocal assurance of impartiality was obtained, the defendant's challenge for cause should have been granted with respect to that prospective juror (see People v. Nicholas, 98 N.Y.2d 749, 751 N.Y.S.2d 820, 781 N.E.2d 884 ; People v. Martinez, 165 A.D.3d 1288, 86 N.Y.S.3d 143 ; People v. Zachary, 260 A.D.2d 514, 689 N.Y.S.2d 156 ). The failure to grant the defendant's challenge for cause requires reversal of the judgment of conviction because the defendant exhausted all of his peremptory challenges prior to the completion of jury selection (see CPL270.20[2]; People v. Alvarez, 174 A.D.3d 638, 101 N.Y.S.3d 870 ).
In light of our determination, we need not consider the defendant's remaining contentions.
DILLON, J.P., LASALLE, BARROS and CHRISTOPHER, JJ., concur.