PEOPLE v. JACKSON (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered October 19, 1998, convicting him of grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

 Defense counsel's challenge for cause of a potential juror who repeatedly indicated that he needed to “hear both sides of the story” before making a decision was rejected by the trial court.   The court failed to conduct further inquiry, and the juror never unequivocally stated that he could render an impartial verdict based on the evidence presented (see, People v. Blyden, 55 N.Y.2d 73, 447 N.Y.S.2d 886, 432 N.E.2d 758).   Defense counsel exercised a peremptory challenge against this juror, and exhausted all peremptory challenges before the end of jury selection.   The defendant was thereby prejudiced, requiring a new trial (see, People v. Sumpter, 237 A.D.2d 389, 654 N.Y.S.2d 817).

 The defendant also contends that an audio tape recording of a telephone call to the 911 emergency number, reporting the crime in question, was Rosario material and that the failure to preserve the tape required that an adverse inference charge be given.   Where the tape of a 911 call is not preserved and the defendant is prejudiced thereby, the court must impose an appropriate sanction and the failure to do so requires reversal (see, People v. Joseph, 86 N.Y.2d 565, 635 N.Y.S.2d 123, 658 N.E.2d 996;  People v. Burch, 247 A.D.2d 546, 669 N.Y.S.2d 299).   However, the Rosario rule applies to statements made by a witness, and its purpose is to allow cross-examination of that witness as to discrepancies between trial testimony and the statement made at the time of the crime (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881).   In this case, the caller to the 911 number was not a witness at trial.   In fact, the caller was unknown and, therefore, the Rosario holding does not apply (see, Matter of Andrew T., 182 A.D.2d 630, 581 N.Y.S.2d 864).

MEMORANDUM BY THE COURT.