People v. Sumpter , 654 N.Y.S.2d 817 ( 1997 )

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Clabby, J.), rendered June 27, 1995, convicting him of criminal possession of stolen property in the third degree, attempted grand larceny in the third degree, unauthorized use of a motor vehicle in the third degree, criminal mischief in the fourth degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

Contrary to the defendant’s contention, we conclude that the evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620), was legally sufficient to prove his guilt of criminal possession of stolen property in the third degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). However, the defendant is entitled to a new trial because the trial court erred in denying his challenge for cause of a prospective juror.

The charges against the defendant involved the theft of a vehicle, and the primary witnesses against him were the police officers who arrested him. During voir dire the prospective jurors were told the names of two police officers from the 103rd Precinct who would testify for the prosecution. One of the prospective jurors advised the court that she was dating an officer from the 103rd Precinct. The defense counsel asked the juror:

"If it turned out that the officers that were testifying in this matter were from your boyfriend’s home precinct, do you think that would create some difficulty for you?”

The Juror: "Yes, it could, and they are.”

Defense counsel: "You know that?”

The Juror: "Yes.”

Defense Counsel: "And you would have some difficulty?”

The Juror: "It could. I don’t know that it would, but I could see how you might think it would”.

Upon further questioning by defense counsel, the juror said "I think I could be impartial”. Although the juror said she did not know either of the police witnesses, she had attended functions with officers from the 103rd Precinct, and there was a possibility that she had met these witnesses socially. The trial court did not inquire of the juror whether she would be able to render an impartial verdict under these circumstances. Defense counsel’s request to excuse this juror for cause was denied, and defense counsel exercised a peremptory challenge.

CPL 270.20 (1) (b) provides that a juror may be challenged for cause on the ground that "[h]e has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial”. Where there is a prima facie showing that a juror possesses such a state of mind, the trial court should require the prospective juror to expressly and unequivocally state that he or she can render an impartial verdict based solely on the evidence. In determining whether the juror has made an unequivocal declaration, the juror’s entire testimony should be considered (see, People v Blyden, 55 NY2d 73; People v Torpey, 63 NY2d 361). Courts should err on the side of caution and dismiss a juror whose impartiality is questionable (see, People v Blyden, supra).

Here, the prospective juror’s statements established prima facie that she had a state of mind that was likely to preclude her from rendering an impartial verdict. The concern expressed by the juror did not relate to law enforcement officials in general but was a specific concern about her ability to fairly consider the testimony of her boyfriend’s coworkers (see, e.g., People v Walton, 220 AD2d 286; cf., People v Williams, 63 NY2d 882). Moreover, there was a distinct possibility that, once the officers took the stand, she would find that she had previously met them socially.

The juror was therefore required to state in unequivocal terms that she would be able to render an impartial verdict based solely on the evidence. We conclude that the juror’s statement to defense counsel that "I think I could be impartial” fell short of the required unequivocal declaration of impartiality, and, taken as a whole, her statements reveal that she was concerned that her relationship with police officers in the 103rd Precinct might affect her ability to be impartial. Accordingly, the defendant’s challenge for cause should have been granted (see, e.g., People v Butler, 221 AD2d 918; People v Punch, 215 AD2d 410; People v Williams, 210 AD2d 914; cf., People v Williams, 222 AD2d 627).

This issue presents reversible error because the defendant exhausted all of his peremptory challenges before the completion of jury selection (see, CPL 270.20 [2]; People v Torpey, supra; People v Birch, 215 AD2d 573). O’Brien, J. P., Ritter and Altman, JJ., concur.