People v. De Francesco

88 A.D.2d 920, 450 N.Y.S.2d 562, 1982 N.Y. App. Div. LEXIS 17255

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Westchester County (McNab, J.), rendered March 21, 1981, convicting him of murder in the second degree (three counts), burglary in the first degree (two counts), and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. During the voir dire of the jury, defense counsel was not permitted to ask potential jurors whether they would follow instructions from the court requiring them to disregard inculpatory statements made by defendant should the jury find them to have been involuntarily made. The refusal to allow this question denied defendant his right to be certain that he was being tried by an impartial jury. The unique status of inculpatory statements in jury cases (Jackson v Denno, 378 US 368; Watkins v Sowders, 449 US 341, 346-347) and the requirement that counsel be permitted to ask whether a prospective juror would have any difficulty in following the instructions of the court (People v Boulware, 29 NY2d 135), mandate a reversal. We further hold that the responses of the juror Frankel required the granting of the challenge for cause. Mangano, J. P., Gulotta, O’Connor and Bracken, JJ., concur.