People v. Nicholas , 731 N.Y.S.2d 99 ( 2001 )

—Judgment reversed on the law and new trial granted. Memorandum: Contrary to the contention of defendant, the verdict convicting him of murder in the second degree (Penal Law §§ 20.00, 125.25 [1]) is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant’s contention that the conviction is not supported by legally sufficient evidence is not preserved for our review (see, People v Gray, 86 NY2d 10, 19), and in any event is without merit. We conclude that there is a “valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People” (People v Williams, 84 NY2d 925, 926).

Contrary to the further contention of defendant, Supreme Court properly denied his motion to suppress his statements to the police. The court properly determined that defendant’s statements were preceded by the knowing, intelligent, and voluntary waiver by defendant of his Miranda rights (see, People v Moreno, 272 AD2d 898, lv denied 95 NY2d 869; People v Daniels, 265 AD2d 909, 910, lv denied 94 NY2d 878). The court also properly determined that the police had probable cause to arrest defendant (see, People v Van De Mortel, 158 AD2d 960; see also, People v Bennett, 70 NY2d 891, 893; People v Lewis, 278 AD2d 819, lv denied 96 NY2d 760).

We agree with defendant, however, that the court erred in denying his challenges for cause with respect to three prospective jurors. Following the denial of his challenge for cause to those prospective jurors, defendant exercised peremptory challenges to exclude them and, prior to the end of jury selection, he exhausted his peremptory challenges. Thus, the erroneous denial of the challenges for cause constitutes reversible error (see, CPL 270.20 [2]; People v White, 275 AD2d 913, 914).

During voir dire, defense counsel asked a panel of prospective jurors if they would have “a tendency to believe a police officer’s account just because he or she is a police officer.” The voir dire transcript then states that prospective jurors were “indicating,” at which point defense counsel told those prospective jurors to raise their hands. The transcript again states that the prospective jurors were “indicating.” Later, defense counsel asked of “those that raised their hands,” whether they would “be leaning towards accepting [the testimony of] a police officer” over that of a non-police officer. The transcript states, “jurors nodding affirmatively.” The record establishes that, when the parties and the court convened to discuss the for-cause and peremptory challenges, they were aware of which prospective jurors had responded affirmatively to that line of questioning.

“[W]hen potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance that they can set ¿side any bias and render an impartial verdict based on the evidence” (People v Johnson, 94 NY2d 600, 614). Here, the record establishes that certain prospective jurors were biased in favor of police officers and the court failed to question those prospective jurors individually to ensure that they could be impartial (see, People v Arnold, 96 NY2d 358). We therefore reverse the judgment and grant a new trial (see, People v Johnson, supra, at 616; People v Blyden, 55 NY2d 73, 78-79).

Although the error is harmless in the context of this trial, we note that the court erred in denying defendant’s request for a charge concerning the evidence of flight (see, People v Yazum, 13 NY2d 302, 304, rearg denied 15 NY2d 679; 1 CJI[NY] 9.16). We also note that the People may not elicit testimony concerning defendant’s right to remain silent and invocation of the right to counsel (see, People v DeGeorge, 73 NY2d 614, 618-619; People v McLean, 243 AD2d 756, lv denied 91 NY2d 928) and that where, as here, such testimony is elicited or volunteered, the court should give curative instructions (see, People v Clark, 281 AD2d 947; People v McLean, supra, at 756).

All concur except Hayes, J., who dissents and votes to affirm in the following Memorandum.