PEOPLE v. WILSON (2008)

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered November 29, 2005, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).

Defendant proceeded to trial on a four-count indictment.   During jury selection, a prospective juror sent a letter to County Court stating that he was actively running a business and asked to be exempt from jury duty.   When the prospective juror was questioned, he explained that during the first day of jury selection his business had a problem, and his efforts to resolve the problem caused him to get little sleep that night.   The court asked if he could put someone else in charge, to which he replied, “I will try, but it's really difficult.”   He stated that it would be hard for him to sit on the jury, but it would not be impossible, and indicated that he was not trying to shirk his civic duty.   Defense counsel unsuccessfully challenged the juror for cause, then elected to use a peremptory challenge.¹  Following trial, the jury convicted defendant of all counts.   He now appeals.

 County Court appropriately exercised its discretion in denying defendant's challenge for cause.   A defendant may challenge for cause a prospective juror who “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20[1][b] ).  Slight interference with employment or inconvenience related to sitting on a jury are insufficient grounds to support a challenge for cause (see People v. Ciochenda, 17 A.D.3d 248, 248, 793 N.Y.S.2d 47 [2005], lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 255, 834 N.E.2d 1265 [2005];  People v. Willard, 226 A.D.2d 1014, 1017-1018, 641 N.Y.S.2d 896 [1996], appeal dismissed 88 N.Y.2d 943, 647 N.Y.S.2d 177, 670 N.E.2d 461 [1996];  People v. Dunkley, 189 A.D.2d 776, 777, 592 N.Y.S.2d 401 [1993], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 946, 613 N.E.2d 978;  cf. People v. Bunch, 278 A.D.2d 501, 502, 717 N.Y.S.2d 385 [2000];  Matter of Robles v. Bamberger, 219 A.D.2d 243, 246-247, 640 N.Y.S.2d 882 [1996], appeal dismissed 88 N.Y.2d 962, 647 N.Y.S.2d 714, 670 N.E.2d 1346 [1996], lv. denied 88 N.Y.2d 809, 647 N.Y.S.2d 714, 670 N.E.2d 1346 [1996];  People v. Nocedo, 161 A.D.2d 297, 298, 555 N.Y.S.2d 74 [1990] ).   Moreover, absent an abuse of discretion, an appellate court will not disturb a trial court's determination concerning whether a prospective juror can sit in a particular case (see People v. Busreth, 35 A.D.3d 965, 966-967, 824 N.Y.S.2d 814 [2006], lv. denied 8 N.Y.3d 920, 834 N.Y.S.2d 510, 866 N.E.2d 456 [2007] ).

Here, although the juror expressed his inconvenience and inability to run his business efficiently while he was on jury duty, he reassured County Court that he placed a high value on jury service and that he would serve if chosen.   Considering that almost every potential juror is inconvenienced by taking a week or more away from one's work or normal routine, and that each has personal concerns which could cause some distraction from a trial, County Court did not abuse its discretion in denying defendant's challenge for cause (see People v. Michael, 48 N.Y.2d 1, 10, 420 N.Y.S.2d 371, 394 N.E.2d 1134 [1979];  see also Matter of Colcloughley v. Johnson, 115 A.D.2d 58, 62, 499 N.Y.S.2d 686 [1986], lv. denied 68 N.Y.2d 604, 506 N.Y.S.2d 1026, 497 N.E.2d 706 [1986] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The People concede that defendant subsequently exhausted his peremptory challenges.   Thus, an erroneous denial of a challenge for cause would constitute reversible error (see CPL 270.20[2] ).

KANE, J.

MERCURE, J.P., SPAIN, LAHTINEN and MALONE JR., JJ., concur.