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

The PEOPLE, etc., respondent, v. Jeffrey SMITH, appellant.

Decided: October 25, 1999

FRED T. SANTUCCI, J.P., DANIEL W. JOY, WILLIAM D. FRIEDMANN and GLORIA GOLDSTEIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Robin A. Forshaw, and Kenneth V. Byrne of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered February 4, 1998, convicting him of criminal sale of a controlled substance in the third degree, assault in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

 The trial court erred in denying the defendant's challenge for cause to two prospective jurors.   Where there is evidence that a prospective juror's state of mind is likely to preclude him or her from rendering an impartial verdict (see, CPL 270.20[1][b] ), the juror is required to state in unequivocal terms that he or she would be able to render a verdict based solely on the evidence adduced at trial (see, People v. Torpey, 63 N.Y.2d 361, 367, 482 N.Y.S.2d 448, 472 N.E.2d 298;  People v. Jordan, 244 A.D.2d 360, 663 N.Y.S.2d 876).   In evaluating whether the prospective juror has made an unequivocal declaration, the trial court must consider the juror's entire testimony (see, People v. Torpey, supra, at 368, 482 N.Y.S.2d 448, 472 N.E.2d 298;  People v. Jordan, supra, at 360, 663 N.Y.S.2d 876).   The record clearly demonstrates that the jurors' statements, as a whole, fell short of the required unequivocal declaration of impartiality (see, People v. Burdo, 256 A.D.2d 737, 682 N.Y.S.2d 681;  People v Jordan, supra, at 360, 663 N.Y.S.2d 876;  People v. McFadden, 244 A.D.2d 887, 665 N.Y.S.2d 985;  People v. Sumpter, 237 A.D.2d 389, 391, 654 N.Y.S.2d 817).   Since the defendant exhausted all of his peremptory challenges, a new trial is required.

In light of our determination we need not reach the remaining issues.


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