People v. Hernandez , 636 N.Y.S.2d 74 ( 1995 )

O’Brien, J. P.,

dissents and votes to reverse the judgment and order a new trial, with the following memorandum: I agree with the defendant that the court erred in denying his challenge for cause of a prospective juror pursuant to CPL 270.20 (1) (b). Because the defendant peremptorily challenged the juror and exhausted his peremptory challenges before the completion of jury selection, the denial of his challenge for cause was reversible error (see, People v Torpey, 63 NY2d 361; CPL 270.20 [2]).

Contrary to my colleagues, I conclude that the defendant made a prima facie showing that the prospective juror who had a "problem” rendering a verdict if the defendant did not testify evidenced a state of mind that was likely to preclude him from rendering an impartial verdict. Although the court reinstructed the panel of prospective jurors on the presumption of innocence and the People’s burden of proof, this prospective juror was not directly asked whether he would follow the court’s instructions in this regard. In fact, when the defendant challenged this juror for cause, there was a disagreement between the court and the defense counsel as to whether the juror had made a hand motion indicating that he had some difficulty with the court’s instructions. The court rejected the defense counsel’s suggestion that it question the juror further.

The trial court, particularly in light of the disagreement with the defense counsel over the juror’s response to its instructions, should have made an inquiry as to whether this juror’s state of mind would influence his verdict and whether he would render an impartial verdict based solely on the evidence (see, People v Torpey, supra, at 367; People v Blyden, 55 NY2d 73, 77-78; cf., People v Lee, 193 AD2d 759; People v Burns, 169 AD2d 773). I find that the case at bar is distinguishable from People v Archer (210 AD2d 241), relied upon by the majority because, in that case, there was nothing in the record to indicate that the prospective juror would not follow the court’s instruction so that she would have difficulty rendering an impartial verdict.