Opinion
2013-06-5
The PEOPLE, etc., respondent, v. Mario WILLIAMS, appellant.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Matthew Sweet of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Matthew Sweet of counsel), for respondent.
RANDALL T. ENG, P.J., REINALDO E. RIVERA, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered February 16, 2011, convicting him of robbery in the third degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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, stating that the case had “come this far, so something had to happen for it to come this far,” he provided unequivocal assurances that the filing of an indictment would not have an impact upon his judgment, that he would accord the defendant “the presumption of innocence to which he is entitled,” and would “hold the People to the burden of proving guilt beyond a reasonable doubt.” The prospective juror further unequivocally agreed with the proposition that “the fact that (the defendant is) sitting here now means nothing until and unless the People prove his guilt beyond a reasonable doubt.” Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's challenge for cause ( see People v. Hewitt, 95 A.D.3d 1358, 1358–1359, 944 N.Y.S.2d 766;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).
The defendant's challenges to certain of the prosecutor's summation remarks are unpreserved for appellate review, as he did not object to the remarks at issue ( seeCPL 470.05[2]; People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276;People v. Wright, 90 A.D.3d 679, 933 N.Y.S.2d 887). In any event, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or a fair response to defense counsel's summation ( see People v. Wright, 90 A.D.3d at 679, 933 N.Y.S.2d 887;People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. Overlee, 236 A.D.2d 133, 144, 666 N.Y.S.2d 572;People v. Salaman, 231 A.D.2d 464, 647 N.Y.S.2d 739).