THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. SCOTT FUREY DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of, inter alia, kidnapping in the second degree (Penal Law § 135.20) and burglary in the second degree (§ 140.25[2] ), defendant contends that County Court erred in denying his challenges for cause to two prospective jurors.   We reject that contention.   When one of the prospective jurors was unable to state unequivocally that she could render an impartial verdict, the court conducted its own inquiry and elicited an unequivocal assurance of impartiality (see People v. Gladding, 60 AD3d 1401, lv denied 12 NY3d 925;  see generally People v. Chambers, 97 N.Y.2d 417, 419;  People v. Arnold, 96 N.Y.2d 358, 362).   With respect to the second prospective juror in question, the record establishes that her relationships with several of the police witnesses were not “ ‘likely to preclude’ “ her from rendering an impartial verdict, and thus it cannot be said that she was inherently biased (People v. Provenzano, 50 N.Y.2d 420, 424;  see CPL 270.20[1][c];  People v. Cassidy, 16 AD3d 1079, 1080, lv denied 5 NY3d 760).

Defendant failed to preserve for our review his further contention that the court erred in refusing to suppress evidence seized during the inventory search of his vehicle (see People v. Nix, 192 A.D.2d 1116, lv. denied 82 N.Y.2d 757), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant also failed to preserve for our review his contention that the evidence is not legally sufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Defendant contends that he was denied a fair trial based on three instances of alleged prosecutorial misconduct.   He failed to preserve for our review his contention with respect to two of the alleged instances (see People v. Beers, 302 A.D.2d 898, lv denied 99 N.Y.2d 652), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6] [a] ).   With respect to the third alleged instance of prosecutorial misconduct, we agree with defendant that the prosecutor improperly elicited testimony that defendant invoked his right to counsel during his interview with the police.   We nevertheless conclude that the error is harmless (see People v. McLean, 243 A.D.2d 756, 756-757, lv denied 91 N.Y.2d 928).

Patricia L. Morgan

Clerk of the Court