Opinion
2012-03-23
The PEOPLE of the State of New York, Respondent, v. Howard L. BRYANT, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, course of sexual conduct against a child in the second degree (Penal Law § 130.80[1][b] ). As defendant contends and the People correctly concede, reversal is required because County Court erred in denying defendant's challenge for cause to a prospective juror. “We note at the outset that defendant[, after the challenge at issue was determined,] exhausted his peremptory challenges, and thus his contention is properly before us” ( People v. Payne, 49 A.D.3d 1154, 1154, 853 N.Y.S.2d 791; see CPL 270.20[2]; People v. Nicholas, 98 N.Y.2d 749, 752, 751 N.Y.S.2d 820, 781 N.E.2d 884).
After responding to the court's general questions appropriately, a prospective juror in the first pass stated that there was a possibility that she would presume that defendant was guilty if he chose not to testify. There was no further questioning of that prospective juror. Consequently, the statements of that prospective juror “cast serious doubt on [her] ability to render a fair verdict under the proper legal standards. The trial court therefore was required to elicit some unequivocal assurance from [that] prospective juror[ ] that [she was] able to reach a verdict based entirely upon the court's instructions on the law. The jury panel's earlier collective acknowledgment that they would follow the court's instructions was insufficient to constitute such an unequivocal declaration” ( People v. Bludson, 97 N.Y.2d 644, 646, 736 N.Y.S.2d 289, 761 N.E.2d 1016). We therefore reverse the judgment, and we grant a new trial on the indictment.
Defendant failed to preserve for our review his further contention that he was deprived of his constitutional right to confront witnesses against him by the court's limitation of his cross-examination of the victim. “Although ... defendant [took exception to the court's ruling], he did not specify the [constitutional] ground now raised on appeal. Therefore, the issue of whether he was deprived of his right of confrontation is unpreserved for appellate review” ( People v. Perez, 9 A.D.3d 376, 377, 779 N.Y.S.2d 584, lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680; see People v. Rivera, 33 A.D.3d 450, 450–451, 823 N.Y.S.2d 14, lv. denied 7 N.Y.3d 928, 827 N.Y.S.2d 697, 860 N.E.2d 999). In any event, that contention is without merit. “ ‘[C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony’ ” ( People v. Smith, 12 A.D.3d 1106, 1106, 784 N.Y.S.2d 810, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143; see People v. Gross, 71 A.D.3d 1526, 1527, 896 N.Y.S.2d 557, lv. denied 15 N.Y.3d 774, 907 N.Y.S.2d 462, 933 N.E.2d 1055). Here, however, the court's final ruling permitted defendant to bring out significant details with respect to the victim's prior bad acts, and thus it did not constitute an improvident exercise of the court's discretion.
Defendant's remaining contentions are academic in light of our determination.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.