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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Paul MATEO, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND LAWTON, JJ. David P. Elkovitch, Auburn, for Defendant-Appellant. Paul Mateo, Defendant-Appellant Pro Se. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of promoting prison contraband in the first degree (Penal Law § 205.25[2] ).   We agree with defendant that reversal is required because County Court erred in denying his challenge for cause to a prospective juror who gave equivocal answers during voir dire and thus failed to establish her ability to be impartial.   When asked whether the fact that her husband was a correction officer and her son a police officer would impair her ability to be fair, she replied that she “would hope not,” and she acknowledged that there was a possibility that she would tend to credit the testimony of correction officers over that of other witnesses.   In addition, she stated that it would be “difficult” for her to be fair and that she could only “think [she] could say [she'd] try to be fair.”   Moreover, the prospective juror was twice asked whether she would feel comfortable being judged by someone with her mindset before she gave an affirmative response to that question.   The statements of the prospective juror “raise[d] a serious doubt regarding [her] ability to be impartial,” which mandated that she be excused unless she “state [d] unequivocally on the record that ․ she [could] be fair and impartial” (People v. LaValle, 3 N.Y.3d 88, 103, 783 N.Y.S.2d 485, 817 N.E.2d 341;  see People v. Nicholas, 286 A.D.2d 861, 862, 731 N.Y.S.2d 99, affd. 98 N.Y.2d 749, 751 N.Y.S.2d 820, 781 N.E.2d 884;  People v. Bludson, 97 N.Y.2d 644, 645, 736 N.Y.S.2d 289, 761 N.E.2d 1016;  People v. Arnold, 96 N.Y.2d 358, 362-364, 729 N.Y.S.2d 51, 753 N.E.2d 846), and she did not do so.  “If there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have ‘replaced one impartial juror with another’ ” (Arnold, 96 N.Y.2d at 362, 729 N.Y.S.2d 51, 753 N.E.2d 846;  see People v. Ocean, 294 A.D.2d 824, 740 N.Y.S.2d 902;  People v. Escoto, 283 A.D.2d 962, 963, 725 N.Y.S.2d 771, lv. denied 96 N.Y.2d 901, 730 N.Y.S.2d 798, 756 N.E.2d 86).   We therefore reverse the judgment and grant a new trial.   We have examined the remaining contentions of defendant, including those raised in the pro se supplemental brief, and conclude that they are lacking in merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.