Opinion
7991 Ind. 147/13
01-03-2019
The PEOPLE of the State of New York, Respondent, v. Jose MARTINEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Friedman, J.P., Richter, Gesmer, Kern, Moulton, JJ.
Judgment, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered March 31, 2016, convicting defendant, after a jury trial, of criminal sale of a firearm in the third degree (two counts), criminal possession of a weapon in the third degree (two counts) and unlawfully engaging in the business of dealing in rifles and shotguns, and sentencing him to an aggregate term of six years, unanimously affirmed.
The court providently exercised its discretion in denying defendant's challenge for cause to a prospective juror who disclosed that he was married to a "supervisor" in the Bronx District Attorney's "complaint office." He gave repeated assurances that he could be impartial despite his wife's employment. The prosecutor stated that he did not know who the panelist's wife was, and it has never been asserted that the wife had ever had any contact with defendant's case. On this limited record, defendant failed to meet his burden of showing implied bias, requiring automatic exclusion (see People v. Furey, 18 N.Y.3d 284, 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 [2011] ). The connection between the panelist and the prosecution was too attenuated to support a finding of implied bias (see People v. Hawkins, 41 A.D.3d 732, 839 N.Y.S.2d 769 [2d Dept. 2007], lv denied 9 N.Y.3d 876, 842 N.Y.S.2d 788, 874 N.E.2d 755 [2007] ; People v. Malave, 271 A.D.2d 204, 707 N.Y.S.2d 26 [1st Dept. 2000], lv denied 95 N.Y.2d 836, 713 N.Y.S.2d 143, 735 N.E.2d 423 [2000] ; People v. Whittington, 267 A.D.2d 486, 699 N.Y.S.2d 733 [2d Dept. 1999], lv denied 94 N.Y.2d 926, 708 N.Y.S.2d 366, 729 N.E.2d 1165 [2000] ).
We perceive no basis to reduce defendant's sentence.