COLLINS, TODD M., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1047
KA 14-02296
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TODD M. COLLINS, DEFENDANT-APPELLANT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered December 15, 2014. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted on the
first count of the indictment.
Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of sexual abuse in the first degree (Penal Law
§ 130.65 [3]). We agree with defendant that the conviction must be
reversed because County Court erroneously denied his challenge for
cause to a prospective juror whose son is married to the daughter of
the District Attorney of Ontario County, R. Michael Tantillo, and who
has a grandchild in common with the District Attorney. Contrary to
the People’s contention, defendant’s challenge is preserved for our
review inasmuch as he challenged the prospective juror based upon
“basically the whole Tantillo connection.” We further note that,
following the denial of the challenge for cause, defendant exercised a
peremptory challenge against the prospective juror and later exhausted
his peremptory challenges before the completion of jury selection (see
CPL 270.20 [2]; People v Lynch, 95 NY2d 243, 248). We conclude that
the prospective juror should have been excused from service for cause
on the ground that he bears a “relationship to [the District Attorney]
of such nature that it [was] likely to preclude him from rendering an
impartial verdict” (CPL 270.20 [1] [c]; see People v Branch, 46 NY2d
645, 651-652; People v Bedard, 132 AD3d 1070, 1071; People v Clark,
125 AD2d 868, 869-870, lv denied 69 NY2d 878).
We also agree with defendant that reversal is required because
the court erred in excluding testimony from a defense witness that the
victim had said that she did not “think [defendant] did this,” meaning
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KA 14-02296
that defendant did not commit the alleged crime. We conclude that, on
cross-examination of the victim, defense counsel had laid an adequate
foundation for the admission of that prior inconsistent statement by
eliciting testimony that the victim had never discussed the matter
with the defense witness and had never told the defense witness that
the alleged occurrence “between [her] and [defendant] might not have
happened” (see People v Bradley, 99 AD3d 934, 936-937; see also People
v Duncan, 46 NY2d 74, 80-81, rearg denied 46 NY2d 940, cert denied 442
US 910, rearg dismissed 56 NY2d 646; see generally People v
Concepcion, 175 AD2d 324, 327, lv denied 78 NY2d 1010).
Contrary to defendant’s further contention, however, the court
did not err in refusing to preclude evidence of certain details that
were allegedly included in defendant’s oral statement to the police
but that were omitted from the CPL 710.30 notice. Such notice need
not be a “verbatim report of the complete oral statement[s]” of
defendant (People v Moss, 89 AD3d 1526, 1528, lv denied 18 NY3d 885
[internal quotation marks omitted]), but merely must set forth the
“sum and substance” of such statements (People v Arroyo, 111 AD3d
1299, 1300, lv denied 23 NY3d 960 [internal quotation marks omitted]).
Moreover, because defendant moved to suppress all of his statements to
the police and the court denied that motion after a hearing, any
deficiencies in the CPL 710.30 notice are immaterial and cannot result
in preclusion (see CPL 710.30 [3]; People v Mikel, 303 AD2d 1031,
1031, lv denied 100 NY2d 564; People v Ginty, 299 AD2d 922, lv denied
99 NY2d 582). In light of our determination, we need not reach
defendant’s remaining contentions.
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court