Opinion
617 KA 19-00215
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Jaquan COBB, Defendant-Appellant.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment, rendered upon a jury verdict, convicting defendant of promoting prison contraband in the first degree ( Penal Law § 205.25 [2] ). We agree with defendant that County Court erred in denying defendant's challenge for cause to prospective juror number 6 (prospective juror).
"It is well established that ‘prospective jurors who give some indication of bias but do not provide an unequivocal assurance of impartiality must be excused for cause’ " ( People v. Hernandez , 174 A.D.3d 1352, 1353, 105 N.Y.S.3d 763 [4th Dept. 2019], quoting People v. Nicholas , 98 N.Y.2d 749, 750, 751 N.Y.S.2d 820, 781 N.E.2d 884 [2002] ; see People v. Arnold , 96 N.Y.2d 358, 362, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ; People v. Johnson , 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ). Here, the prospective juror gave "some indication of bias" ( Nicholas , 98 N.Y.2d at 750, 751 N.Y.S.2d 820, 781 N.E.2d 884 ) by stating that her friendship with a prosecution witness "might" "affect [her] ability to be fair and impartial in this case" and that serving as a juror "might be awkward" in light of that friendship (see People v. Malloy , 137 A.D.3d 1304, 1305, 28 N.Y.S.3d 448 [2d Dept. 2016], lv dismissed 27 N.Y.3d 1135, 39 N.Y.S.3d 117, 61 N.E.3d 516 [2016] ; People v. Walton , 51 A.D.3d 1148, 1148, 856 N.Y.S.2d 316 [3d Dept. 2008] ; People v. Moorer , 77 A.D.2d 575, 576, 429 N.Y.S.2d 913 [2d Dept. 1980] ; cf. People v. Collazo , 294 A.D.2d 102, 103, 742 N.Y.S.2d 214 [1st Dept. 2002], lv denied 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002] ).
Contrary to the court's determination, the prospective juror did not give an unequivocal assurance of impartiality by merely stating, during follow-up questioning, that she would not feel compelled to "answer" to the witness for her verdict. The fact that a prospective juror would not feel compelled to answer to another person for their verdict does not necessarily mean that such prospective juror "can be fair " ( Arnold , 96 N.Y.2d at 362, 729 N.Y.S.2d 51, 753 N.E.2d 846 [emphasis added] ). Indeed, a person could be unable to judge a case impartially while simultaneously being confident that he or she would not have to answer for the verdict to any other person. Thus, the prospective juror's assurances that she would not feel compelled to answer to the witness for her verdict does not constitute the unequivocal assurance of impartiality required by law. Inasmuch as defendant peremptorily challenged the prospective juror and thereafter exhausted all available peremptory challenges, we must reverse the judgment and grant defendant a new trial (see CPL 270.20 [2] ; People v. Mateo , 21 A.D.3d 1392, 1392-1393, 801 N.Y.S.2d 468 [4th Dept. 2005] ). Defendant's remaining contentions are academic in light of our determination.