Opinion
06-30-2017
The PEOPLE of the State of New York, Respondent, v. Nicole E. HARGIS, Defendant–Appellant. (Appeal No. 1.).
Linda M. Campbell, Syracuse, for Defendant–Appellant. Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant.
Kristyna S. Mills, District Attorney, Watertown (Harmony A. Healy of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, DeJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting her upon a jury verdict of various sex crimes committed against three victims, including two counts of predatory sexual assault against a child ( Penal Law § 130.96 ). In appeal No. 2, she appeals from a judgment convicting her upon the same jury verdict of rape in the second degree (§ 130.30[1] ) committed against a fourth victim. The appeals arise from separate indictments that were joined for trial. In both appeals, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We reject defendant's contention that the testimony of the victims was incredible as a matter of law (see People v. St. Ives, 145 A.D.3d 1185, 1187–1188, 43 N.Y.S.3d 187 ; People v. Nilsen, 79 A.D.3d 1759, 1760, 915 N.Y.S.2d 781, lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 ; People v. Baker, 30 A.D.3d 1102, 1102–1103, 817 N.Y.S.2d 793, lv. denied 7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70 ).
We agree with defendant, however, that County Court erred in denying her challenge for cause to a prospective juror whose statements during voir dire cast serious doubt on her ability to be impartial (see generally CPL 270.20 [1] [b] ; People v. Arnold, 96 N.Y.2d 358, 362–363, 729 N.Y.S.2d 51, 753 N.E.2d 846 ). Upon being asked by defense counsel whether she thought that she "would have to hear from [defendant] in order to determine what the verdict should be," the prospective juror responded, in relevant part, that she "would like to hear from everyone involved." Defense counsel later asked the prospective juror, by way of confirmation, whether she had said that she would "like to hear from [defendant]," and the prospective juror reiterated that she "would like to hear from everyone." We conclude that the prospective juror's responses suggested that defendant had an obligation to testify, thereby casting serious doubt on her ability to render an impartial verdict (see People v. Bludson, 97 N.Y.2d 644, 645–646, 736 N.Y.S.2d 289, 761 N.E.2d 1016 ; People v. Casillas, 134 A.D.3d 1394, 1395–1396, 22 N.Y.S.3d 268 ; People v. Jackson, 125 A.D.3d 485, 485–486, 4 N.Y.S.3d 14 ; People v. Givans, 45 A.D.3d 1460, 1461, 845 N.Y.S.2d 665 ; People v. Russell, 16 A.D.3d 776, 777–778, 791 N.Y.S.2d 198, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161 ). We further conclude that the prospective juror's silence when the court subsequently asked the entire panel whether anyone "needs to hear from the defendant or must hear from the defendant before he or she renders a verdict" did not constitute an unequivocal assurance of impartiality that would warrant denial of defendant's challenge for cause (see Arnold, 96 N.Y.2d at 363–364, 729 N.Y.S.2d 51, 753 N.E.2d 846 ; Casillas, 134 A.D.3d at 1396, 22 N.Y.S.3d 268 ; People v. Strassner, 126 A.D.3d 1395, 1396, 5 N.Y.S.3d 662 ; cf. People v. Taylor, 134 A.D.3d 1165, 1169, 20 N.Y.S.3d 708, lv. denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 ). Inasmuch as defendant exercised a peremptory challenge with respect to the prospective juror and exhausted all of her peremptory challenges before the completion of jury selection, the denial of her challenge for cause constitutes reversible error (see CPL 270.20[2] ; Strassner, 126 A.D.3d at 1396, 5 N.Y.S.3d 662 ). We therefore reverse the judgment in each appeal and grant a new trial on the counts of which defendant was convicted.
In view of our determination, we do not address defendant's remaining contentions, including her contention that the court erred in denying her challenge for cause to another prospective juror.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts 1, 3 through 16, 18 through 50, and 52 of the indictment.