People v. Hernandez

222 A.D.2d 696, 636 N.Y.S.2d 74, 1995 N.Y. App. Div. LEXIS 13875

Opinions

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered September 7, 1993, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court correctly denied the defendant’s challenged for cause to a venireperson (see, CPL 270.20 [1] [b]). During voir dire, in response to questioning from the defense counsel, the subject venireperson said that because he would like "to hear [the defendant’s] side of [the] story also”, he had a "problem” with the judicial tenet that a defendant has no obligation to testify. Upon hearing the venireperson voice this concern, the court instructed the panel of venirepersons that under the law the defendant is presumed innocent, he has "no obligation to say anything”, and the burden of proof lies wholly with "the government”. Further, the court specifically stated that contrary to the defense counsel’s claim, it had paid "very close attention” to the venirepersons and did not observe the subject venireperson make any hand motion indicating disagreement with the court’s instruction.

Contrary to the defendant’s contention, we find that the concern manifested by the subject venireperson did not rise to a level of actual bias or otherwise indicate that he would be unable to render an impartial verdict (see, People v Archer, 210 AD2d 241). As in People v Archer (supra), the defense counsel’s questioning of the venireperson excluded the fact at trial, the jury would also hear cross-examination of the People’s witnesses. As such, the venireperson’s responses to the defense counsel’s questioning were both logical and unbiased. Accordingly, since no actual bias was evinced, there was no need for the court to administer an expurgatory oath or sustain the defendant’s challenge for cause (see, CPL 270.20 [1] [b]; People v Archer, supra, at 242).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Pizzuto, Santucci and Joy, JJ., concur.