PEOPLE v. HERNANDEZ (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts one, two, five, seven and eight of the indictment.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of assault in the second degree (Penal Law § 120.05[1], [2]).  Defendant contends that the evidence is legally insufficient to support the conviction because the People purportedly failed to prove that the crimes occurred on August 9, 2016 (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).  We reject that contention.  As permitted by statute (see CPL 200.50[6]), the indictment alleged that the crimes occurred “on or about August 9, 2016.”  The jury was instructed accordingly.  Thus, even if, as defendant claims, the People proved only that the crimes occurred on the evening of August 8, 2016, such proof establishes that the crimes occurred “on or about August 9, 2016” in accordance with the indictment and the jury instructions (emphasis added) (see generally People v. Rodriguez, 88 A.D.3d 600, 601, 931 N.Y.S.2d 60 [1st Dept. 2011]).

We agree with defendant, however, that County Court erred in denying his challenge for cause to prospective juror number 13 (prospective juror).  It is well established that “prospective jurors who give some indication of bias but do not provide an unequivocal assurance of impartiality must be excused for cause” (People v. Nicholas, 98 N.Y.2d 749, 750, 751 N.Y.S.2d 820, 781 N.E.2d 884 [2002];  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, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000]).  Here, by repeatedly insisting that police officers were unlikely to lie under oath because doing so would endanger their pensions, the prospective juror “cast serious doubt on [her] ability to render a fair verdict under the proper legal standards” and to follow the court's instructions concerning, at a minimum, issues of witness credibility (People v. Bludson, 97 N.Y.2d 644, 646, 736 N.Y.S.2d 289, 761 N.E.2d 1016 [2001];  see People v. Mitchum, 130 A.D.3d 1466, 1467, 12 N.Y.S.3d 749 [4th Dept. 2015];  People v. Strassner, 126 A.D.3d 1395, 1396, 5 N.Y.S.3d 662 [4th Dept. 2015]).  The court was therefore “required to elicit some unequivocal assurance from the ․ prospective juror[ ] that [she was] able to reach a verdict based entirely upon the court's instructions on the law” (Bludson, 97 N.Y.2d at 646, 736 N.Y.S.2d 289, 761 N.E.2d 1016).  No such assurances were obtained from the prospective juror, and the court thus erred in denying defendant's challenge for cause with respect to that juror (see id. at 645–646, 736 N.Y.S.2d 289, 761 N.E.2d 1016).  Because defendant peremptorily challenged the prospective juror and thereafter exhausted his peremptory challenges, we must reverse the judgment and grant a new trial on counts one, two, five, seven and eight of the indictment (see CPL 270.20[2];  Mitchum, 130 A.D.3d at 1467, 12 N.Y.S.3d 749;  Strassner, 126 A.D.3d at 1396, 5 N.Y.S.3d 662).

Because we are granting a new trial, we address defendant's challenge to the court's suppression ruling in the interest of judicial economy and conclude that the court erred in refusing to suppress defendant's statements to police at his home and at the police station.  With respect to the statements at defendant's home, it is undisputed that defendant was ordered out of his bedroom by police officers in the middle of the night, directed to remain in a vestibule outside his apartment, and thereafter subjected to pointed, accusatory questions for about an hour.  Under those circumstances, we agree with defendant that a reasonable person, innocent of any crime, would not have felt free to leave, and that he was thus in custody during the questioning, which the People correctly concede constituted interrogation (cf. People v. Thomas, 166 A.D.3d 1499, 1500, 87 N.Y.S.3d 431 [4th Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 244 [2019];  People v. Kelley, 91 A.D.3d 1318, 1318–1319, 937 N.Y.S.2d 514 [4th Dept. 2012], lv denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012];  see generally People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970];  People v. Boyle, 239 A.D.2d 512, 512–513, 658 N.Y.S.2d 641 [2d Dept. 1997];  People v. Perkins, 189 A.D.2d 830, 832–833, 592 N.Y.S.2d 752 [2d Dept. 1993]).  Because defendant was not Mirandized before the custodial interrogation at his house, the statements that he made during that interrogation should have been suppressed (see People v. Mejia, 64 A.D.3d 1144, 1145–1146, 882 N.Y.S.2d 621 [4th Dept. 2009], lv denied 13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100 [2009]).

With respect to the statements at the police station, defendant unequivocally invoked his right to counsel by stating “I think I will take the lawyer” or “I think I need a lawyer” (see People v. Bethea, 159 A.D.3d 710, 711–712, 71 N.Y.S.3d 589 [2d Dept. 2018], lv denied 31 N.Y.3d 1115, 81 N.Y.S.3d 374, 106 N.E.3d 757 [2018];  see also People v. Harris, 93 A.D.3d 58, 67–70, 936 N.Y.S.2d 233 [2d Dept. 2012], affd 20 N.Y.3d 912, 956 N.Y.S.2d 478, 980 N.E.2d 527 [2012];  People v. Porter, 9 N.Y.3d 966, 967, 848 N.Y.S.2d 583, 878 N.E.2d 998 [2007]).  Thus, we agree with defendant that his statements following his unequivocal invocation of his right to counsel at the police station should have been suppressed as well (see People v. Jackson, 171 A.D.3d 1458, 1459, 99 N.Y.S.3d 147 [4th Dept. 2019];  Bethea, 159 A.D.3d at 711–712, 71 N.Y.S.3d 589).

Defendant's remaining contentions are academic in light of our determination.