Opinion
No. 464 KA 21-01759
07-28-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. PABLO M. SANTIAGO, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., BANNISTER, MONTOUR, AND GREENWOOD, JJ.
Appeal from a judgment of the Ontario County Court (Kristina Karle, J.), rendered October 27, 2021. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired and aggravated unlicensed operation of a motor vehicle in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and the indictment is dismissed without prejudice to the People to file any appropriate charges.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), as a lesser included offense of driving while intoxicated (§ 1192 [3]), and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a] [i]). The conviction arose from a traffic stop during which defendant, who was driving without a valid license with his seven-year-old son in a vehicle that contained open containers of alcoholic beverages, exhibited signs of being under the influence of alcohol and acknowledged consuming alcohol earlier in the evening.
Contrary to defendant's contention, we conclude that County Court properly refused to suppress the physical evidence resulting from the traffic stop and defendant's arrest (see People v Russ, 183 A.D.3d 1238, 1238 [4th Dept 2020], lv denied 35 N.Y.3d 1070 [2020]; see generally People v Prochilo, 41 N.Y.2d 759, 761 [1977]). Next, viewing the evidence in light of the elements of driving while ability impaired as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we reject defendant's contention that the verdict with respect to that crime is against the weight of the evidence (see People v Gibson, 173 A.D.3d 1785, 1785-1786 [4th Dept 2019], lv denied 34 N.Y.3d 931 [2019]; see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
We agree with defendant, however, that the court erred in denying his challenge for cause to prospective juror No. 2 on the second panel of prospective jurors. "It is well settled that 'a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial'" (People v Odum, 67 A.D.3d 1465, 1465 [4th Dept 2009], lv denied 14 N.Y.3d 804 [2010], reconsideration denied 15 N.Y.3d 755 [2010], cert denied 562 U.S. 931 [2010], quoting People v Chambers, 97 N.Y.2d 417, 419 [2002]). Although CPL 270.20 (1) (b) "does not require any particular expurgatory oath or 'talismanic' words..., [a prospective] juror[ ] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict" (People v Arnold, 96 N.Y.2d 358, 362 [2001]; see People v Harris, 19 N.Y.3d 679, 685 [2012]).
Here, viewing the prospective juror's statements "in totality and in context" (People v Warrington, 28 N.Y.3d 1116, 1120 [2016]; see People v Johnson, 94 N.Y.2d 600, 615-616 [2000]; People v Clark, 171 A.D.3d 1530, 1531 [4th Dept 2019]), we conclude that those statements cast serious doubt on her ability to render an impartial verdict because, during discussions of the allegations against defendant, the prospective juror twice indicated that the mere presence of a child in the vehicle could influence her ability to fairly and impartially evaluate the evidence (see Warrington, 28 N.Y.3d at 1117, 1120; People v Valdez, 138 A.D.3d 1151, 1153 [2d Dept 2016], lv denied 28 N.Y.3d 938 [2016]; People v Henriques, 307 A.D.2d 937, 937-938 [2d Dept 2003], lv denied 100 N.Y.2d 642 [2003]; People v Webster, 177 A.D.2d 1026, 1028 [4th Dept 1991], lv denied 79 N.Y.2d 866 [1992]). The prospective juror initially stated in response to follow-up questioning that, despite the allegation that a child was present in the vehicle, she would still require the People to prove beyond a reasonable doubt that defendant was intoxicated. However, she later retreated from that assurance upon further questioning by acknowledging that the mere fact that defendant had imbibed alcohol or had alcoholic beverages in the vehicle would, even in the absence of proof of intoxication, possibly influence her ability to evaluate the evidence, and then added, without prompting, that such influence on her decision-making would be especially so given that a child was involved (see Clark, 171 A.D.3d at 1531; People v Betances, 147 A.D.3d 1352, 1353-1354 [4th Dept 2017]). "[N]othing less than a personal, unequivocal assurance of impartiality can cure a [prospective] juror's prior indication that [they are] predisposed against a particular defendant or particular type of case" (Arnold, 96 N.Y.2d at 364), and our review of the record here establishes that the prospective juror "did not g[i]ve the requisite unequivocal assurances that her prior state of mind would not influence her verdict and that she could be fair and impartial" (Clark, 171 A.D.3d at 1531 [internal quotation marks omitted]).
Inasmuch as defendant exercised a peremptory challenge with respect to the prospective juror and exhausted all of his peremptory challenges before the completion of jury selection, the denial of his challenge for cause constitutes reversible error (see CPL 270.20 [2]; People v Padilla, 191 A.D.3d 1347, 1348 [4th Dept 2021]; Clark, 171 A.D.3d at 1531-1532). Therefore, under the circumstances of this case, we reverse the judgment and dismiss the indictment without prejudice to the People to file any appropriate charge (see People v Kniffin, 176 A.D.3d 1601, 1602 [4th Dept 2019]; People v Crombleholme, 8 A.D.3d 1068, 1071 [4th Dept 2004], lv denied 3 N.Y.3d 672 [2004]; see generally People v Gonzalez, 61 N.Y.2d 633, 635 [1983]). In light of our determination, we do not address defendant's remaining contentions.