Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Shawn YOUNG, Appellant.
Cynthia Feathers, Glens Falls, for appellant. Robert M. Carney, District Attorney, Schenectady (John R. Healy of counsel), for respondent.
Cynthia Feathers, Glens Falls, for appellant. Robert M. Carney, District Attorney, Schenectady (John R. Healy of counsel), for respondent.
Before: PETERS, P.J., ROSE, EGAN JR., LYNCH and DEVINE, JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered August 19, 2011, upon a verdict convicting defendant of the crimes of burglary in the first degree, robbery in the first degree and grand larceny in the third degree.
In the early morning hours of August 19, 2010, defendant and another assailant forced their way at gun point into the victim's apartment in the City of Schenectady, Schenectady County, ordered Winston Tull and William Davis, who were visiting the victim, to lie on the floor and stole money and drugs from the victim before fleeing the apartment. Following a jury trial, defendant was convicted of burglary in the first degree, robbery in the first degree and grand larceny in the third degree and was sentenced to an aggregate prison term of 20 years. Defendant now appeals.
We agree with defendant that County Court committed reversible error in denying his challenge for cause to prospective juror No. 153. “Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” ( People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] [citations omitted]; see People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012];People v. McGuire, 101 A.D.3d 1386, 1388, 956 N.Y.S.2d 635 [2012] ). Here, during jury selection, juror No. 153 stated that he was “very uncomfortable” about the alleged use of a firearm during the commission of the charged crimes. When asked by defense counsel if his stated discomfort was something that would affect his ability to keep an open mind, juror No. 153 responded, “It might. I can't say for sure what it is, but it's a concern to me.”
After questioning of this panel had concluded, and out of the presence of the prospective jurors, defense counsel challenged juror No. 153 for cause. County Court, stating that defense counsel failed to ask any follow-up questions of juror No. 153 at the time the juror made the subject statements in order to make out an appropriate foundation for cause, denied the challenge. Having heard the statements by juror No. 153, County Court should have either granted the challenge for cause or conducted a further inquiry of that juror and obtained express, unequivocal assurances on the record of his impartiality ( see People v. Harris, 19 N.Y.3d at 685–686, 954 N.Y.S.2d 777, 978 N.E.2d 1246;People v. McGuire, 101 A.D.3d at 1388, 956 N.Y.S.2d 635;People v. Thigpen, 277 A.D.2d 261, 261, 715 N.Y.S.2d 74 [2000] ). As the record demonstrates, no such assurances were even sought—much less obtained—from this particular juror. Although the record indeed indicates that the prospective jurors collectively responded in the affirmative when asked—as a group—if they could render a decision based solely upon the evidence presented, County Court did not specifically address the concern expressed by juror No. 153 in any meaningful way or otherwise obtain assurances of his impartiality. Absent such assurances, and given the fact that defendant exhausted his peremptory challenges, the denial of defendant's challenge for cause constitutes reversible error ( see People v. Nicholas, 98 N.Y.2d 749, 752, 751 N.Y.S.2d 820, 781 N.E.2d 884 [2002];People v. Jones, 45 A.D.3d 1178, 1179, 845 N.Y.S.2d 875 [2007];see also CPL 270.20[2] ). Accordingly, this matter is remitted for a new trial.
Finally, although we agree that the People improperly used Davis' testimony to bolster the victim's prior identification testimony of defendant as the perpetrator, any error in this regard “was most certainly harmless in light of [the victim's] unequivocal and well-grounded identification testimony and the overwhelming evidence of defendant's guilt” ( People v. Vargas, 60 A.D.3d 1236, 1239, 875 N.Y.S.2d 625 [2009],lv. denied13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ). The balance of defendant's evidentiary objections have been examined and found to be lacking in merit.
ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Schenectady County for a new trial. PETERS, P.J., ROSE, LYNCH and DEVINE, JJ., concur.