PEOPLE v. BAUM

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

The PEOPLE of the State of New York, Respondent, v. Tyrell BAUM, Defendant-Appellant.

Decided: September 18, 2008

MAZZARELLI, J.P., ANDRIAS, SAXE, FRIEDMAN, ACOSTA, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Weil, Gotshal & Manges LLP, New York (David R. Singh of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered December 5, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of 6 years, unanimously affirmed.

 After sufficient inquiry, the court properly discharged a sworn juror after she stated that she lived in the neighborhood where the crime and defendant's arrest occurred, and that she was worried that the possibility of encountering defendant would prevent her from rendering a fair verdict.   Although the juror's responses were contradictory, the totality of her statements coupled with the court's evaluation of her worried demeanor, as specifically described by the court on the record, established that she was grossly unqualified (see People v. Wilson, 295 A.D.2d 272, 745 N.Y.S.2d 691 [2002], lv. denied 98 N.Y.2d 714, 749 N.Y.S.2d 12, 778 N.E.2d 563 [2002];  People v. Carrasco, 262 A.D.2d 50, 691 N.Y.S.2d 465 [1999], lv. denied 93 N.Y.2d 1015, 697 N.Y.S.2d 574, 719 N.E.2d 935 [1999] ).   Defendant's procedural claims concerning the trial court's resolution of this issue are without merit (see People v. Buford, 69 N.Y.2d 290, 298-290, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ).

 The challenged portions of the prosecutor's summation do not warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).   The prosecutor did not improperly vouch for the credibility of the police witnesses. Rather, the prosecutor's remarks were a proper response to defense counsel's credibility arguments (see People v. Sims, 162 A.D.2d 384, 385, 557 N.Y.S.2d 40 [1990], lv. denied 76 N.Y.2d 990, 563 N.Y.S.2d 779, 565 N.E.2d 528 [1990] ).   However, the prosecutor improperly denigrated the integrity of defense counsel by stating that counsel was “speaking out of both sides of her mouth” during summation (see People v. LaPorte, 306 A.D.2d 93, 95, 762 N.Y.S.2d 55 [2003] ). The prosecutor also improperly shifted the burden of proof to defendant by stating on two occasions that defense counsel “needed” the jury to believe that the People's witnesses were lying, thereby implying “that the jury was entitled to acquit only if it disbelieved the evidence actually presented” (People v. Levy, 202 A.D.2d 242, 245, 608 N.Y.S.2d 466 [1994] ).   Nevertheless, these improper remarks were isolated, and any error was harmless in light of the overwhelming evidence of defendant's guilt, which included the recovery of buy money from his person.