People v. Givans

Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered July 8, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the second degree and conspiracy in the second degree and, upon a plea of guilty, of aggravated unlicensed operation of a motor vehicle in the third degree.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]) and conspiracy in the second degree (§ 105.15) and upon a plea of guilty of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). Defendant contends that County Court erred in denying his challenges for cause to four prospective jurors. We agree with defendant that the court erred with respect to the two prospective jurors who insisted that defendant should testify. One of those prospective jurors also repeatedly stated that she would favor law enforcement and give greater weight to the testimony of law enforcement witnesses. We conclude that the statements of the two prospective jurors “cast serious doubt on their ability to render a fair verdict under the proper legal standards [, and t]he trial court therefore was required to elicit some unequivocal assurance from the two prospective jurors that they were able to reach a verdict based entirely upon the court’s instructions on the law” (People v Bludson, 97 NY2d 644 , 646 [2001]). “[N]othing less than a personal, unequivocal assurance of impartiality can cure a [prospective] juror’s prior indication that [he or] she is predisposed against a particular defendant or particular type of case” (People v Arnold, 96 NY2d 358 , 364 [2001]), and the two prospective jurors at issue failed to offer the requisite “unequivocal assurance of impartiality” (id.). Because defendant used all of his peremptory challenges before jury selection was complete, reversal is required (see CPL 270.20 [2]; People v Linnan, 23 AD3d 1013 , 1013-1014 [2005]; People v Russell, 16 AD3d 776 , 777 [2005], lv denied 5 NY3d 809 [2005]). We therefore modify the judgment by reversing those parts convicting defendant of criminal possession of a controlled substance in the second degree and conspiracy in the second degree, and we grant a new trial on those counts of the indictment.

Although we are hereby granting a new trial, we nevertheless address defendant’s remaining contentions in the interest of judicial economy.

We agree with defendant that the court erred in admitting a text message from a cellular telephone in evidence, inasmuch as