People v. Smith — 265 A.D.2d 583

Majority

p. 583

The People of the State of New York, Respondent, v Jeffrey Smith, Appellant.

[697 NYS2d 652]

—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 NY2d 361 , 367; People v Jordan, 244 AD2d 360 ). In evaluating whether the prospective juror has made an unequivocal declaration, the

p. 584

trial court must consider the juror’s entire testimony (see, People v Torpey, supra, at 368 ; People v Jordan, supra, at 360 ). 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 AD2d 737 ; People v Jordan, supra, at 360 ; People v McFadden, 244 AD2d 887 ; People v Sumpter, 237 AD2d 389 , 391). 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. Santucci, J. P., Joy, Friedmann and Goldstein, JJ., concur.

Cases cited

People v. Torpey 63 NY2d 361 N.Y. 1984-11-20 at 367 p. 583
People v. Burdo 256 AD2d 737 N.Y. App. Div. 1998-12-10 p. 584