PEOPLE v. BALISTRERI (2007)

Appeal from a judgment of the District Court of Nassau County, First District (Norman St. George, J.), rendered on July 19, 2004.   The judgment convicted defendant, upon a jury verdict, of criminal contempt in the second degree.

Judgment of conviction reversed on the law, matter remanded to the court below for a new trial and temporary order of protection issued on August 16, 2004 reinstated.

Defendant appeals from a judgment convicting her of criminal contempt in the second degree (Penal Law § 215.50[3] ).   At the outset, we note that contrary to defendant's contention, a review of the record on appeal establishes that the verdict of guilt was 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 [1987] ).   Defendant further contends that reversal is required because the court below erred in denying her challenge for cause of a prospective juror who stated that he would want to hear testimony from both the complainant and defendant to be fair in rendering a verdict.   Without making a searching inquiry of the juror concerning this statement (see CPL 270.20[1] [b] ), the court below instructed the juror that he could not hold it against defendant if she did not testify at trial.   The prospective juror's responses to defense counsel's follow-up inquiry, to the effect that he would want to hear testimony from “both sides” in order to “give a better judgment” and that he would “[n]ot necessarily” be able to render a fair verdict if defendant did not testify, were less than unequivocal assurances that he would set aside any bias and render an impartial verdict on the evidence (see People v. Arnold, 96 N.Y.2d 358, 362, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001];  People v. Johnson, 94 N.Y.2d 600, 613-615, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ).   Consequently, the court's denial of defendant's challenge for cause, where her peremptory challenges were eventually exhausted, constituted reversible error (see People v. Nicholas, 98 N.Y.2d 749, 751 N.Y.S.2d 820, 781 N.E.2d 884 [2002];  People v. Johnson, 94 N.Y.2d 600, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ).   We therefore reverse the judgment of conviction and grant a new trial.

Finally, we note that the permanent order of protection issued by the court below is vacated (see generally CPL 530.12[5];  530.13[4];  People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ) and the temporary order of protection is reinstated.

RUDOLPH, P.J., McCABE and TANENBAUM, JJ., Concur.