Opinion
July 13, 1998
Appeal from the County Court, Nassau County (Calabrese, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
We agree with the defendant that the trial court erred in refusing to dismiss prospective juror No. 9 for cause. The juror indicated that he believed that an individual accused of a crime was probably guilty. Where there is evidence that a prospective juror's state of mind is likely to preclude him or her from rendering an impartial verdict ( see, CPL 270.20 [b]), the juror must state unequivocally that he or she would be able to render a verdict based solely on the evidence adduced at trial ( see, People v. Torpey, 63 N.Y.2d 361, 367; People v. Blyden, 55 N.Y.2d 73, 77-78; People v. Davis, 248 A.D.2d 399).
Here, the juror's responses to further questioning fell short of the necessary unequivocal declaration of impartiality as he continued to adhere to his belief that an individual accused of a crime "most probably did it" ( see, People v. Davis, supra; People v. Johnson, 245 A.D.2d 305; People v. Jordan, 244 A.D.2d 360). Because defense counsel then exercised a peremptory challenge against this prospective juror and eventually exhausted his peremptory challenges, the defendant's conviction must be reversed ( see, People v. Torpey, 63 N.Y.2d 361, supra; People v. Johnson, supra; CPL 270.20).
Since there must be a new trial, we have considered the defendant's contention that the tape of a 911 call made by an eyewitness was inadmissible hearsay. We conclude that the trial court properly determined that the tape was admissible as a a excited utterance exception to the hearsay rule ( see, People v. Vasquez, 88 N.Y.2d 561; People v. Edwards, 47 N.Y.2d 493; People v. Masas, 244 A.D.2d 433).
In view of our determination, we do not reach the defendant's contention that the trial court erred in failing to dismiss two other prospective jurors for cause.
O'Brien, J. P., Santucci, Krausman and Goldstein, JJ., concur.