Opinion
563 KA 19-01437
08-26-2021
The PEOPLE of the State of New York, Respondent, v. Justin M. TILLMON, Defendant-Appellant. (Appeal No. 1.)
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: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, 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 on counts three through eight of the indictment, and counts one and two of the indictment are dismissed, without prejudice to the People to re-present any appropriate charges with respect to such dismissed counts to another grand jury.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him after a jury trial of, inter alia, two counts of assault in the second degree ( Penal Law § 120.05 [3] ), and one count each of unlawful imprisonment in the second degree (§ 135.05) and criminal obstruction of breathing or blood circulation (§ 121.11). In appeal No. 2, he appeals from a judgment convicting him after a jury trial of, inter alia, criminal contempt in the first degree (§ 215.51 [b] [iv]). In appeal No. 1, contrary to defendant's contention, we conclude that the conviction of assault in the second degree as charged in count four of the indictment is supported by legally sufficient evidence (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see also People v. Chiddick , 8 N.Y.3d 445, 447-448, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; People v. Talbott , 158 A.D.3d 1053, 1054, 69 N.Y.S.3d 453 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 109, 103 N.E.3d 1256 [2018] ). We further conclude that, contrary to defendant's contention in both appeals, County Court did not abuse its discretion in granting the People's motion to consolidate the indictments (see People v. Cooney [Appeal No. 2], 137 A.D.3d 1665, 1666, 28 N.Y.S.3d 166 [4th Dept. 2016], appeal dismissed 28 N.Y.3d 957, 38 N.Y.S.3d 526, 60 N.E.3d 422 [2016] ; People v. Bankston , 63 A.D.3d 1616, 1616, 880 N.Y.S.2d 417 [4th Dept. 2009], lv denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008 [2010] ; see generally People v. Lane , 56 N.Y.2d 1, 8, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982] ). The court properly determined that the indictments were joinable under CPL 200.20 (2) (b) on the basis of overlapping evidence because the charges in the first indictment arose from an incident in which defendant violently assaulted his ex-girlfriend and the police officers who tried to arrest him, and the charges in the second indictment arose from incidents in which defendant violated orders of protection issued after the assault and tried to dissuade witnesses from testifying (see People v. Smith [Appeal No. 1], 186 A.D.3d 1106, 1107, 129 N.Y.S.3d 234 [4th Dept. 2020] ; People v. Perez , 47 A.D.3d 409, 410-411, 849 N.Y.S.2d 514 [1st Dept. 2008], lv denied 10 N.Y.3d 843, 859 N.Y.S.2d 402, 889 N.E.2d 89 [2008] ).
We agree with defendant, however, that the court erred in denying his challenge for cause to a prospective juror during voir dire, inasmuch as the court failed to obtain an unequivocal assurance of impartiality from the prospective juror in question. "It is well established that ‘[p]rospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused’ " ( People v. Mitchum , 130 A.D.3d 1466, 1467, 12 N.Y.S.3d 749 [4th Dept. 2015] ; see People v. Strassner , 126 A.D.3d 1395, 1395, 5 N.Y.S.3d 662 [4th Dept. 2015] ). While no "particular expurgatory oath or ‘talismanic’ words [are required,] ... [prospective] jurors 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, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001] ).
Here, the prospective juror in question himself expressed "doubt [as to his] own ability to be impartial in the case at hand" ( People v. Johnson , 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ) when he stated during voir dire that he was "not sure" whether he could be fair and impartial due to his family members’ experience with domestic violence (see e.g. People v. Rodriguez , 172 A.D.3d 509, 509, 99 N.Y.S.3d 313 [1st Dept. 2019] ; People v. Hickman , 154 A.D.3d 493, 493, 61 N.Y.S.3d 486 [1st Dept. 2017] ; People v. Malloy , 137 A.D.3d 1304, 1305, 137 A.D.3d 1304 [2d Dept. 2016], lv dismissed 27 N.Y.3d 1135, 39 N.Y.S.3d 117, 61 N.E.3d 516 [2016] ). The court erred when it did not obtain thereafter any "unequivocal assurance" from the prospective juror that he could render an impartial verdict ( People v. Casillas , 134 A.D.3d 1394, 1396, 22 N.Y.S.3d 268 [4th Dept. 2015] [internal quotation marks omitted]). "Inasmuch as defendant had exhausted all of his peremptory challenges before the completion of jury selection, the denial of defendant's challenge[ ] for cause" constitutes reversible error in each appeal ( Strassner , 126 A.D.3d at 1396, 126 A.D.3d 1395 ; see CPL 270.20 [2] ; Casillas , 134 A.D.3d at 1396, 22 N.Y.S.3d 268 ). In appeal No. 1, we therefore reverse the judgment and grant a new trial on counts three through eight of the indictment. Inasmuch as defendant was convicted of unlawful imprisonment as a lesser included offense under count one of the indictment in appeal No. 1 and convicted of criminal obstruction of breathing or blood circulation as a lesser included offense under count two of the indictment in that appeal, we dismiss those counts with leave to re-present any appropriate charges with respect thereto to another grand jury. In appeal No. 2, we therefore reverse the judgment and grant a new trial.
In light of our determination, we do not address defendant's remaining contentions.