Opinion
2001-00491
Argued January 10, 2003.
February 4, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered January 8, 2001, convicting him of assault in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Winston McIntosh of counsel), and Cecilia Loving, New York, N.Y. (Richard Jackson on the brief), for appellant (one brief filed).
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Beverly Kalman of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, WILLIAM D. FRIEDMANN, REINALDO E. RIVERA, JJ.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
Where there is evidence that the state of mind of a prospective juror is likely to preclude him or her from rendering an impartial verdict (see CPL 270.20[b]), the court must elicit from that juror a personal, unequivocal assurance that he or she will be able to render a verdict based solely on the evidence adduced at trial (see People v. Arnold, 96 N.Y.2d 358; People v. Torpey, 63 N.Y.2d 361; People v. Yattang Ng, 298 A.D.2d 470, 471; People v. Butler, 287 A.D.2d 647, 648). Here, one of the prospective jurors gave equivocal responses when questioned by counsel as to whether the fact that her husband was a postal inspector would prevent her from being fair and impartial. The trial court failed to obtain a personal, unequivocal declaration or assurance of impartiality from that prospective juror. Because of the possible predisposition of that prospective juror against the defendant, which raised a serious doubt regarding her ability to render an impartial verdict, the defendant was not assured of his right to a trial before an unbiased fact-finder (see People v. Arnold, supra; People v. Johnson, 94 N.Y.2d 600).
The trial court's failure to grant the defendant's challenge for cause of this prospective juror constituted reversible error, since the defendant had exhausted all of his peremptory challenges prior to the completion of jury selection (see CPL 270.20; People v. Torpey, supra; People v. Morton, 271 A.D.2d 702, 703).
The defendant's remaining contentions are either without merit or need not be reached in light of this determination.
FLORIO, J.P., FEUERSTEIN, FRIEDMANN and RIVERA, JJ., concur.