PEOPLE v. HORACE (2000)

Defendant was convicted upon a jury verdict of rape in the first degree (Penal Law § 130.35[2] ) and sexual abuse in the first degree (Penal Law § 130.65[2] ).   Contrary to defendant's contentions, the conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant further contends that Supreme Court erred in denying his challenges for cause to five prospective jurors.   We disagree.   Defendant contends that his challenge for cause to one prospective juror should have been granted on the ground that a prospective witness was her cousin.   Defendant did not challenge that prospective juror based upon that relationship (see, CPL 270.20[1][c] ), however, and thus failed to preserve his contention for our review (see, People v. Laverpool, 267 A.D.2d 93, 94, 700 N.Y.S.2d 139, lv. denied 94 N.Y.2d 904, 707 N.Y.S.2d 389, 728 N.E.2d 988;  People v. Deschamps, 256 A.D.2d 13, 680 N.Y.S.2d 842, lv. denied 93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510;  People v. Arredondo, 226 A.D.2d 322, 642 N.Y.S.2d 630, lv. denied 88 N.Y.2d 964, 647 N.Y.S.2d 718, 670 N.E.2d 1350).   Defendant challenged four other jurors for cause pursuant to CPL 270.20(1)(b).  Where an issue concerning the ability of a prospective juror to be fair and impartial is raised, the prospective juror must state unequivocally that the juror's prior state of mind will not influence the juror's verdict, and that the juror will render an impartial verdict based solely on the evidence (see, People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932;  People v. Blyden, 55 N.Y.2d 73, 77-78, 447 N.Y.S.2d 886, 432 N.E.2d 758;  People v. Biondo, 41 N.Y.2d 483, 485, 393 N.Y.S.2d 944, 362 N.E.2d 576, cert. denied 434 U.S. 928, 98 S.Ct. 413, 54 L.Ed.2d 288).   Based on our review of the voir dire transcript, we agree with the court that the jurors stated unequivocally that their prior states of mind would not influence their verdict and that they would render an impartial verdict based solely on the evidence.

 Defendant also contends that the court erred in its charge to the jury concerning reasonable doubt and circumstantial evidence.   We disagree.   The court's reasonable doubt charge, which mirrored the charge set forth in 1 CJI(N.Y.) 6.20, conveyed the proper standard of proof and did not improperly shift the burden of proof (see, People v. Pochily, 255 A.D.2d 695, 696, 680 N.Y.S.2d 695, lv. denied 93 N.Y.2d 856, 688 N.Y.S.2d 504, 710 N.E.2d 1103;  People v. Persaud, 237 A.D.2d 538, 539, 656 N.Y.S.2d 34, lv. denied 89 N.Y.2d 1098, 660 N.Y.S.2d 392, 682 N.E.2d 993).   The court's circumstantial evidence charge properly instructed the jury “that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence” (People v. Sanchez, 61 N.Y.2d 1022, 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228;  see, People v. Ford, 66 N.Y.2d 428, 441, 497 N.Y.S.2d 637, 488 N.E.2d 458;  People v. Davis, 206 A.D.2d 833, 834, 615 N.Y.S.2d 553, lv. denied 84 N.Y.2d 934, 621 N.Y.S.2d 531, 645 N.E.2d 1231).

We have examined defendant's remaining contentions and conclude that they are lacking in merit.

Judgment unanimously affirmed.

MEMORANDUM: