PEOPLE v. HARRIS

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Thomas HARRIS, Defendant-Appellant.

Decided: November 10, 2005

PRESENT:  GREEN, J.P., GORSKI, SMITH, LAWTON, AND HAYES, JJ. Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Michael J. Nolan of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of two counts of grand larceny in the second degree (Penal Law § 155.40[1] ), three counts of grand larceny in the third degree (§ 155.35) and one count of scheme to defraud in the first degree (§ 190.65 [1] ).   The charges arose from defendant's theft of money from two business entities and three individuals.   We agree with defendant that Supreme Court erred in denying his challenge for cause to a prospective juror.   That prospective juror indicated that her assessment of defendant's guilt would be influenced by the number of complainants, thus raising an issue concerning her ability to be fair and impartial.   It was therefore necessary to obtain her unequivocal assurance that her prior state of mind would not influence the verdict and that she would render an impartial verdict based solely on the evidence (see People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932;  People v. Blyden, 55 N.Y.2d 73, 77-78, 447 N.Y.S.2d 886, 432 N.E.2d 758).   No such assurance was obtained, however, and the denial of defendant's challenge for cause thus constitutes reversible error inasmuch as defendant had exhausted all of his peremptory challenges before the completion of jury selection (see People v. Morton, 271 A.D.2d 702, 703, 707 N.Y.S.2d 185;  cf. People v. Schojan, 272 A.D.2d 932, 933-934, 709 N.Y.S.2d 273, lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374).   Reversal is also required based upon the court's improper curtailment of defense counsel's questioning of prospective jurors with respect to their ability to follow the court's instructions on the limited use of Molineux evidence (see generally People v. Boulware, 29 N.Y.2d 135, 142, 324 N.Y.S.2d 30, 272 N.E.2d 538, cert. denied 405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463).   Although the court has broad discretion in controlling and restricting the scope of voir dire (see id. at 140, 324 N.Y.S.2d 30, 272 N.E.2d 538), the questions posed by defense counsel are “precisely the type of question[s] that should be permitted as indicative of the [prospective] juror[s'] fairness” and willingness to follow the court's instructions (People v. Porter, 226 A.D.2d 275, 276, 641 N.Y.S.2d 283;  see generally Boulware, 29 N.Y.2d at 142, 324 N.Y.S.2d 30, 272 N.E.2d 538).   In light of our decision, we do not address defendant's remaining contentions.

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.

MEMORANDUM: