Opinion
December 11, 1995
Appeal from the Supreme Court, Kings County (Marrus, J.).
Ordered that the judgment is affirmed.
Upon learning that an article had appeared in a local newspaper on the prior day regarding the defendant's prior conviction as a sex offender, the trial court asked the jurors whether anyone had seen or read anything about the case. One juror came forward and, upon inquiry, in the presence of counsel, admitted that he had read the article after a second juror had pointed it out to him. The court then conducted an inquiry of both jurors to determine their ability to remain impartial, discharged as unqualified the one juror who conceded his inability to remain impartial but retained the juror who assured the court that he could put aside what he had read and remain impartial. After replacing the discharged juror with an alternate, the court admonished the jurors to avoid any media coverage of the case and not to bring newspapers into the jury room.
A Trial Judge is vested with "broad discretion" in ruling on the issue of juror prejudice (People v Genovese, 10 N.Y.2d 478, 482; People v Daniels, 218 A.D.2d 589; People v Simmons, 213 A.D.2d 433). A juror is grossly unqualified "only `when it becomes obvious that [the] particular juror possesses a state of mind which would prevent the rendering of an impartial verdict'" (People v Buford, 69 N.Y.2d 290, 298, quoting from People v West, 92 A.D.2d 620, 622 [Mahoney, P.J., dissenting]; see also, People v Rodriguez, 71 N.Y.2d 214; People v Dacus, 215 A.D.2d 578; People v Byrd, 214 A.D.2d 581). Where a court determines, after reasonable inquiry, that a juror will cast aside any preconceived notion, impression, or opinion as to the guilt or innocence of an accused and render a verdict based solely upon the evidence presented at trial, that juror may be considered impartial and fit for service (see, Irvin v Dowd, 366 U.S. 717, 723; see also, People v Genovese, supra, at 481-482; People v Sanchez, 216 A.D.2d 207; People v Byrd, supra). In the instant case, the court properly exercised its discretion in considering the juror to be impartial and fit for trial (see, People v Genovese, supra; People v Sanchez, supra; People v Byrd, supra).
Furthermore, contrary to the defendant's contention, individual inquiry is not the only procedure to follow for assessing claims of improper jury influence. In fact, the Court of Appeals has not fashioned any concrete test for assessing claims of improper jury influence (see, People v Testa, 61 N.Y.2d 1008, 1009). Rather, "`[i]n each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered'" (People v Testa, supra, at 1009; People v Simmons, 213 A.D.2d 433, supra; People v Brown, 48 N.Y.2d 388, 394; see, People v Pickett, 61 N.Y.2d 773; see also, People v Lombardo, 61 N.Y.2d 97). Under the circumstances of this case, the trial court conducted a proper inquiry and any likelihood of prejudice was eliminated by the court's curative instructions (see, People v Simmons, supra).
In addition, upon our review of the testimony adduced at the suppression hearing regarding the lineups, we find that the hearing court properly denied suppression of the lineup identifications of the defendant by the viewing witnesses (see, People v Chipp, 75 N.Y.2d 327, 338, cert denied 498 U.S. 833; People v Galarza, 206 A.D.2d 387, 388; People v Zhang Wan, 203 A.D.2d 499, 500; People v Green, 170 A.D.2d 692).
In light of the defendant's criminal history as a repeat sex offender and the nature of the crimes herein, the defendant's sentence, which was within the statutory guidelines, is neither harsh nor excessive (People v Suitte, 90 A.D.2d 80, 85). The court did not improperly penalize him for exercising his right to a jury trial. It is firmly established that sentences imposed after trial may be more severe than those proposed in connection with a plea bargain (see, People v Pena, 50 N.Y.2d 400, 411-412; People v Clarke, 195 A.D.2d 569, 570-571; People v Austin, 190 A.D.2d 508, 509; People v Catten, 214 A.D.2d 463; see also, People v Delgado, 80 N.Y.2d 780, 781-783; People v Ramos, 201 A.D.2d 679, 682).
We have considered the defendant's remaining contentions and find them to be without merit. Balletta, J.P., Thompson, Joy and Goldstein, JJ., concur.