People v. Arnold

272 A.D.2d 857, 708 N.Y.S.2d 762, 2000 N.Y. App. Div. LEXIS 5228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2000
• Status: Published

Opinions

—Judgment reversed on the law and indictment dismissed without prejudice to the People to re-present any appropriate charges under counts two and five of the indictment to another Grand Jury. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of the lesser included offenses of assault in the second degree (Penal Law § 120.05) and assault in the third degree (Penal Law § 120.00) under counts two and five of the indictment respectively in connection with the stabbing of his ex-girlfriend. We agree with defendant that County Court erred in failing to grant his challenge for cause to a prospective juror. Defendant used a peremptory challenge to excuse the prospective juror, and his peremptory challenges were exhausted prior to the conclusion of jury selection. Thus, defendant may assert on appeal that the denial of his challenge for cause constitutes reversible error (see, CPL 270.20 [2]; People v Torpey, 63 NY2d 361, 365, rearg denied 64 NY2d 885).

CPL 270.20 (1) (b) provides that a prospective juror may be challenged for cause if he or she “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” “Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that the prior state of mind of the juror will not influence his or her verdict and that the juror will render an impartial verdict based solely on the evidence” (People v Barber, 269 AD2d 758, 760; see, People v Johnson, 94 NY2d 600; People v Blyden, 55 NY2d 73, 77-78; People v Biondo, 41 NY2d 483, 485, cert denied 434 US 928; People v Thorn, 269 AD2d 756). In the present case, when the prosecutor posed the question whether anyone thought he or she should not be selected as a juror because of his or her personal background, experience or beliefs, the prospective juror stated, “In my women’s studies — I did a lot of research on domestic violence and battered syndrome, and I have a problem with that.” Upon questioning by defense counsel, the prospective juror indicated that she may have a problem refraining from voicing during deliberations what she had learned through her women’s studies research. Once the prospective juror expressed doubt regarding her ability to be impartial or indicated that she might be an unsworn expert witness in the jury room, it was incumbent upon the court to ascertain that her prior state of mind would not influence her verdict and that she would render an impartial verdict based on the evidence (see, People v Blyden, supra, at 77-78). Because that was not done, we reverse the judgment (see, People v Johnson, supra, at 612; People v Blyden, supra, at 78-79; People v Burdo, 256 AD2d 737, 740-741; People v Brzezicki, 249 AD2d 917, 918-919). Inasmuch as defendant was acquitted of all counts charged in the indictment and was convicted of lesser included offenses under counts two and five of the indictment, the indictment must be dismissed without prejudice to the People to re-present any appropriate charges under those counts to another Grand Jury (see, People v Gonzalez, 61 NY2d 633, 635; People v Jackson, 167 AD2d 893, 894). We disagree with the conclusion of the dissent that the later general acknowledgment by all prospective jurors that they would follow the law established the impartiality of the prospective juror in question (see, People v Blyden, supra, at 78).

In view of our determination, we do not address defendant’s remaining contentions.

All concur except Hayes and Kehoe, JJ., who dissent and vote to affirm in the following Memorandum.