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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Samuel BUTLER, Defendant-Appellant.

Decided: February 23, 1999

ROSENBERGER, J.P., ELLERIN, WALLACH, LERNER and SAXE, JJ. Cristina A. Baiata, for Respondent. Susan J. Horwitz, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered May 23, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 41/212 to 9 years imprisonment, reversed, on the law, the sentences vacated, and the matter remanded for a new trial.

Five jurors were initially selected.   During a subsequent round of jury selection, one venireperson, in the presence of others (including six who would ultimately be seated on this case), acknowledged that he was a veteran officer in the Department of Correction, and that he recognized defendant.   Counsel sought a mistrial on the ground that this must have created the impression to all within earshot that defendant had a prior record.   The trial court denied that motion, as well as a motion to discharge all the jurors then present, instead adopting the alternative course of dismissing the correction officer and polling the remaining eight who heard the comment.   Five of the eight acknowledged having heard the remark, and were admonished to disregard it.   Only one was excused when she insisted that the remark would affect her deliberations.   Challenges of the remaining jurors in this round for cause were denied.

Counsel then asked that the five originally seated jurors also be polled as to their knowledge of the correction officer's remark.   One acknowledged having heard about the remark, but believed it would not affect her.   Another (“JR”) told the judge that her receipt of this information would affect her ability to hear the case, inasmuch as she now had the impression that defendant was a repeat offender.   In camera, JR initially maintained that she would not be able to put this information out of her head.   Her trepidation stemmed in part from an additional remark the correction officer had made outside the courtroom, while walking into the hallway for lunch, expressing concern for his own safety if he had to sit on this jury, because he might encounter defendant in the course of his duties sometime in the future.   This statement was additionally prejudicial in suggesting that defendant was violence-prone.   After a 20-minute conference with the Trial Judge, JR promised to “try” to put these impressions out of her head and be fair to both sides.   The prosecutor was satisfied with this voir dire, but defense counsel objected that this nervous juror had been “badgered” into giving the correct responses in order to please the Judge.

 An inference that a defendant has a prior criminal record is potentially prejudicial to his receiving a fair trial (see, People v. Mullin, 41 N.Y.2d 475, 393 N.Y.S.2d 938, 362 N.E.2d 571;  People v. Cuiman, 229 A.D.2d 280, 656 N.Y.S.2d 243, lv. denied 90 N.Y.2d 903, 663 N.Y.S.2d 515, 686 N.E.2d 227).   When a defendant claims prejudice by making a substantial challenge to the impartiality of a venireperson, the tainted prospective juror or jurors should be removed, unless a probing inquiry establishes that no prejudice will result (People v. Thomas, 196 A.D.2d 462, 601 N.Y.S.2d 608, lv. denied 82 N.Y.2d 904, 610 N.Y.S.2d 171, 632 N.E.2d 481).   If there is any doubt, the Trial Judge should err on the side of disqualifying prospective jurors whose impartiality is in question (People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901;  People v. Branch, 46 N.Y.2d 645, 651-652, 415 N.Y.S.2d 985, 389 N.E.2d 467).   JR's concession to the Trial Judge that she would “try” to be impartial does not constitute the unequivocal declaration necessary to purge her expressed bias in the case (see, People v. Torpey, 63 N.Y.2d 361, 482 N.Y.S.2d 448, 472 N.E.2d 298).

 Our doubts as to this juror's impartiality are reinforced by an incident later in the trial, when the jury foreman confided in JR, between summations and the court's charge, that he was “upset and fearful” about rendering a verdict in this case because his name had been mentioned in open court.   The cumulative effect of the foregoing leads us ineluctably to the conclusion that this juror's participation in the deliberations resulting in defendant's conviction, together with the possible taint of the foreman as an impartial juror, deprived defendant of a fair trial.

We would affirm the judgment of conviction.   The trial court properly exercised its discretion in declining to dismiss the entire panel of prospective jurors, since the allegedly prejudicial remarks by a discharged venireperson did not irrevocably taint the remaining panel, and the court's appropriate inquiry established that those prospective jurors who heard the remark could remain impartial.   Further, the court's refusal to excuse for cause the particular juror in question, “JR”, was also a proper exercise of discretion, in view of the court's thorough inquiry, following which the juror unequivocally assured the court that she could be impartial.

Initially, the remark that began the extended inquiry was merely an isolated comment by one venire member that he recognized defendant, although he did not disclose the source of his recognition (see, People v. Hutton, 220 A.D.2d 687, 633 N.Y.S.2d 60, affd. 88 N.Y.2d 363, 645 N.Y.S.2d 759, 668 N.E.2d 879).   This venire member's position with the Correction Department did not alone justify an inference by anyone hearing the remark that his previous contact with defendant was at his job or that the defendant had been incarcerated at the time, let alone that he was a repeat offender, as JR initially inferred.

The responses ultimately given by JR, once the court took the time to explain the nature of a juror's obligations, did not constitute grounds for her dismissal.   In entertaining a challenge for cause, the court must consider whether the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20[1][b] ).  When a question is raised regarding a prospective juror's impartiality, the juror must expressly state, in unequivocal terms, that his prior state of mind will not unduly influence his verdict, which will be based solely on the evidence (People v. Blyden, 55 N.Y.2d 73, 77-78, 447 N.Y.S.2d 886, 432 N.E.2d 758).

After JR first informed the court that she believed defendant to be a repeat offender based upon the overheard comment, and then responded to an initial instruction with the answer that she would “try” to remain impartial notwithstanding the remark, the court properly took some time to inquire further as to what she meant by “try”.   The court also properly attempted to fully explain to JR such important concepts as considering just the properly introduced evidence, and avoiding speculation.   Upon further explanation, discussion and inquiry, JR finally, unequivocally assured the court that she would not be affected by any of the remarks;  that she presumed defendant's innocence;  and that she understood that the prosecutor bore the burden of proving defendant's guilt (see People v. Ortega, 245 A.D.2d 213, 666 N.Y.S.2d 634, lv. denied 91 N.Y.2d 1011, 676 N.Y.S.2d 139, 698 N.E.2d 968 [although prospective juror initially expressed hesitancy concerning impartiality, upon further inquiry, court properly refused to excuse juror for cause where he unequivocally promised to deliberate fairly] ).   Although the court's inquiry was extensive, JR's ultimate response was not the product of undue pressure or coercion, but of full, careful and informed consideration.   Thus, viewing JR's responses in their entirety and considering the thorough and probing inquiry by the court, which was in the best position to evaluate the juror's demeanor, we find that the court properly declined to excuse JR for cause since there was no substantial risk of partiality (People v. Santos, 250 A.D.2d 413, 673 N.Y.S.2d 94, lv. denied 92 N.Y.2d 905, 680 N.Y.S.2d 69, 702 N.E.2d 854, cert. denied 525 U.S. 1076, 119 S.Ct. 815, 142 L.Ed.2d 674).

Nor is this conclusion altered by JR's subsequent conversation with the jury foreman, who confided in JR that the use of his name in open court made him fearful to deliberate on the case (the foreman was then excused from the jury).   Indeed, a review of the record reveals that rather than still harboring negative feelings toward defendant, JR then assured the court that the foreman's comments would not affect her ability as a juror.


All concur except ELLERIN and SAXE, JJ., who dissent in a memorandum by SAXE, J., as follows:

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