PEOPLE v. HERNANDEZ

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

The PEOPLE of the State of New York, Respondent, v. Francisco HERNANDEZ, Defendant-Appellant.

Decided: June 28, 2005

ANDRIAS, J.P., SAXE, ELLERIN, SWEENY, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Ellen Sue Handman of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered September 27, 2002, convicting defendant, after a jury trial, of attempted murder in the second degree and assault in the first degree (two counts), and sentencing him to concurrent terms of 25 years, unanimously affirmed.

The trial court properly denied defendant's challenge for cause to a prospective juror.   There is no indication that the panelist's concern over her strong aversion to witnessing violence or depictions of violence created any bias in favor of or against any party.   Furthermore, the court determined that certain photos that would be received in evidence were not particularly gruesome.   Accordingly, since the juror said nothing in the first instance to indicate bias against defendant, her use of phrases such as “I would hope,” when viewed in the context of the entire record, did not cast doubt on her ability to render a fair verdict (see People v. Trinidad, 8 A.D.3d 106, 778 N.Y.S.2d 167 [2004], lv. denied 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838 [2004];  People v. Henderson, 291 A.D.2d 324, 737 N.Y.S.2d 850 [2002], lv. denied 98 N.Y.2d 676, 746 N.Y.S.2d 465, 774 N.E.2d 230 [2002] ).