People v. Sharper

—Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered March 21, 1996, convicting defendant, after a jury trial, of six counts of robbery in the first degree and two counts of attempted robbery in the first degree, and sentencing him, as a second felony offender, to six concurrent terms of 12V2 to 25 years on the robbery convictions to run concurrently with two concurrent terms of 7V2 to 15 years on the attempted robbery convictions, reversed, on the law, and the matter remanded for a new trial.

Defendant and Karim Johnson were indicted for robbery in the first degree and tried together. During the third round of jury selection, the court inquired as to whether any of the panel members had friends or relatives working , in the area of law enforcement. One prospective juror stated that he routinely came into contact with police officers and prisoners through his work as a doctor at Bellevue Hospital. His interactions with these individuals inspired in him “a lot of trust and respect for police officers,” so much so that when asked whether he could evaluate police testimony fairly, he equivocated as follows: “I don’t know, but I would guess so, but I am not positive.” At a later point during the voir dire, he volunteered the information that he would tend to credit the testimony of a police officer over that of an ordinary civilian. In addition, one of the doctor’s friends was a prosecutor in the Manhattan District Attorneys office, the office prosecuting this case.

Defense counsel challenged this juror for cause on two grounds: first, the indications of bias detailed above, and second, the juror’s fear that he would be unable to concentrate on the case because he would be missing important training sessions at the hospital, including his rotation in the Intensive Care Unit. In denying the challenge, the trial court spoke only of the latter point. There was no indication that the court found the doctor’s expressed partiality to the prosecution was a pretext to avoid missing work. In fact, the court simply ignored the defendant’s argument as to bias.

Since the court refused to remove this juror for cause, defense counsel used a peremptory challenge. We agree with defendant’s contention that the trial court abused its discretion in declining to remove this juror, and we find that this error warrants the grant of a new trial.

When a defendant’s peremptory challenges are exhausted before jury selection is complete, as occurred here, an erroneous denial of a challenge for cause constitutes reversible error (CPL 270.20 [2]; People v Hewitt, 189 AD2d 781). A challenge for cause should be granted when a prospective juror manifests a state of mind that is likely to preclude him from rendering an impartial verdict (see, People v Torpey, 63 NY2d 361, 369).

Case law is clear that a prospective juror who expresses partiality towards the prosecution and cannot unequivocally promise to set aside this bias should be removed for cause (People v Blyden, 55 NY2d 73, 78). In People v Taylor (120 AD2d 325), we reversed the defendant’s conviction because the court had denied a challenge to a prospective juror, the daughter of a police officer, who said she “ ‘can’t absolutely assure’ ” that she could put aside her predisposition to believe a police witness. As in the instant case, the defense used a peremptory challenge to remove the juror and subsequently exhausted its challenges before the end of voir dire (supra, at 326). Similarly, in People v Scott (170 AD2d 627), the trial court wrongly declined to remove a prospective juror who answered “I hope not. I don’t know”, when asked whether she could be impartial towards police witnesses even though her nephew worked for the FBI. The venirepersons’ statements in Taylor and Scott are equivalent to those of the challenged juror herein.

In Blyden (supra), the defendant was Black and the prospective juror expressed a serious bias against racial minorities. When asked whether he could put his feelings aside to decide this case, he was only able to respond, “ T think I could.’ ” (Supra, at 75.) The Court of Appeals observed that “[w]hen a question is raised regarding a prospective juror’s ability to render an impartial verdict,” he should be discharged unless he makes an “unequivocal” promise to set aside his prior state of mind and to render a verdict based solely on the evidence (People v Blyden, 55 NY2d 73, 77-78, supra). The juror’s responses fell short of this standard (supra, at 79).

Here, not only did the challenged juror fail to follow his initial hesitation with an unambiguous promise to be fair, but also made a further statement indicating bias. As noted above, when defense counsel asked the panel as a whole whether anyone would tend to grant special credence to police testimony, the doctor volunteered an affirmative answer. Under these circumstances, the trial court should have discharged the juror. Concur — Rosenberger, J. P., Wallach and Tom, JJ.