This case comes by way of an appeal. The Defendant was convicted of assault in the third degree and criminal mischief in the fourth degree, upon a jury verdict. A New York Criminal Defendant has the right to be tried by a fair and impartial jury. Prospective jurors must be able to fairly look at the evidence and not incorporate their own personal biases in rendering a verdict. A criminal defendant ought to hire a good criminal defense attorney to flush out such biases which may not be so apparent:
CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence (see People v Johnson, 94 NY2d 600, 614; People v Goodwin, 64 AD3d 790, 791). A prospective juror’s responses, construed as a whole, must demonstrate an absolute belief that his or her prior opinion will not influence his or her verdict (see People v Culhane, 33 NY2d 90, 107; People v Goodwin, 64 AD3d at 792).
“Here, during voir dire, one prospective juror indicated that because her aunt had been the victim of a violent sexual assault, it would ‘be a little bit hard’ for her to keep an open mind when listening to the facts of this case.” Wait a second – this is something that needed to be flushed out through questioning and paying careful attention to the juror behavior. The Court when onto describe that “[w]hen [the prospective juror was] asked whether she could ‘give the defendant in this case a fair trial,’ she responded, ‘I can manage. Yes.’ When asked if it was possible that her judgment in this case might be affected by her aunt’s case, she responded, ‘Might.'” You can imagine that if you were the defendant in this case, you “might” not want this juror rendering a decision impacting your future:
The prospective juror confirmed that she would refrain from blaming the defendant for what happened to her aunt or favoring the prosecution for successfully prosecuting her aunt’s assailant, but when asked again by defense counsel whether her aunt’s experience “might affect [her] ability to judge this case,” the juror paused and finally said, “I don’t know.” The court denied the defendant’s challenge for cause to this prospective juror. The defense then exercised a peremptory challenge to remove her and exhausted all of its peremptory challenges prior to the end of jury selection.
This appeal comes from the Monroe County Supreme Court – a jury convicted the defendant of attempted rape and attempted criminal sexual act in the first and second degree. The judgement is unanimously reversed on the law and “as a matter of discretion in the interest of justice.” A new trial is granted.
“[A]lthough defendant failed to preserve his contention for our review with respect to all but one alleged instance of prosecutorial misconduct” The court exercises its discretion in reviewing the matter and exercises its discretion (in the interests of justice) in fashioning a remedy. The Court recited what the prosecutor did that afforded the Defendant a new trial:
On summation, the prosecutor repeatedly invoked a “safe streets” argument (see People v Tolliver, 267 AD2d 1007, 1007 , lv denied 94 NY2d 908 ), even after Supreme Court sustained defense counsel’s objection to the prosecutor’s use of that argument; denigrated the defense by calling defense counsel’s arguments “garbage,” “smoke and mirrors,” and “nonsense” intended to distract the juror’s focus from the “atrocious acts” that defendant committed against the victim (see People v Morgan, 111 AD3d 1254, 1255 ; People v Spann, 82 AD3d 1013, 1015 ; People v Brown, 26 AD3d 392, 393 ); improperly characterized the defense as being based on a “big conspiracy” against defendant by the prosecutor and the People’s witnesses (see People v Cowan, 111 AD2d 343, 345 , lv denied 65 NY2d 978 ); and denigrated the fact that defendant had elected to invoke his constitutional right to a trial (see People v Rivera, 116 AD2d 371, 373 ). Perhaps most egregiously, given that “the potential danger posed to defendant when DNA evidence is presented as dispositive of guilt is by now obvious,” the prosecutor engaged in misconduct when she mischaracterized and overstated the probative value of the DNA evidence in this case (People v Wright, 25 NY3d 769, 783 ).
The case highlights the importance of a New York Criminal Defense Attorney preserving the record and properly exercising juror challenges because, as was the case here, even a seemingly innocuous statement and position by the New York Assistant District Attorney trying the case can result in a reversal. The situation is such that the Criminal Defendant and two other individuals go to a strip club where the Criminal Defendant drinks and pays for a lap dance. Evidently upset at the quality of the dance, a scuffle ensues. The accusation is that the Defendant assaulted another resulting in serious bodily injury.
Here, the record reflects that the People sought to exercise peremptory challenges to exclude four of the five nonwhite individuals comprising the second panel of prospective trial jurors. Indeed, as defense counsel noted, “The only [nonwhite juror] who was not excluded [from this panel] was the daughter-in-law of the former Chief of Police of the Albany Police Department.” In response to defense counsel’s Batson challenge, County Court asked the People — “based upon the peremptory challenges” asserted — to “give a race-neutral reason…for th[o]se selections,” thereby implicitly finding that defendant had made a prima facie showing of discrimination. The People provided such an explanation as to prospective juror Nos. 4, 6 and 17 but refused to offer a race-neutral explanation as to prospective juror No. 2, noting that this juror was the first nonwhite juror that they had sought to exclude by use of a peremptory challenge. As the prosecuting attorney succinctly put it, “I shouldn’t be made to give a reason for the first one.” Defense counsel took issue with the People’s lack of a raceneutral explanation for the exclusion of this juror, noting that “the fact that [prospective juror No. 2] was the first person of color [to be] excluded [was]…merely fortuitous.” County Court rejected defendant’s argument on this point and allowed the People to exercise a peremptory challenge to exclude prospective juror No. 2, as well as prospective juror Nos. 4 and 6.
The First Department reviewed a conviction and did not find harmless error to uphold the conviction. Here, the “Defendant’s right of confrontation was violated by testimonial hearsay evidence that went beyond the permissible scope of explanatory background material….Defendant was further deprived of his right to a fair trial by other portions of the prosecutor’s summation…The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial…[therefore,] [t[he totality of the circumstances supports an inference that the jury was improperly coerced into returning a compromise verdict.” People v DeJesus, 2015 NY Slip Op 08959 (1st Dep’t. Dec. 8, 2015). What happened here?
Among the problems stated by the First Department in reaching their decision, I focus on one in particular:
During jury deliberations, the court should have granted defendant’s mistrial motion, made on the ground that any verdict would be reached under coercive circumstances. The court’s statements during jury deliberation were also prejudicial to defendant’s right to a fair trial. The jury returned two notes, on the second and fourth day of deliberations, announcing that the jury was deadlocked; the second note emphatically listed different types of evidence the jury had considered. The court’s Allen charges in response to both notes were mostly appropriate but presented the prospect of protracted deliberations by improperly stating that the jury had only deliberated for a very short time when it had actually deliberated for days (see People v Aponte, 2 NY3d 304, 308-309  [trial court improperly stated, among other things, that it was “nowhere near” the point when it would find a hung jury, where deliberation had lasted two days]). The court initially informed the jury that its hours on one day would be extended to 7:00 p.m., before reversing that decision and merely extending the hours to 5:00 p.m., and then it extended the hours to 6:00 p.m. on the next day, a Friday. The court improperly described those changes as a “tremendous accommodation” that was “loathed” by the system (see People v Huarotte, 134 AD2d 166, 170-171 [1st Dept 1987]; see also Aponte, 2 NY3d at 308 [finding reversible error where, among other things,Allen charge “suggested that the jurors were failing in their duty”]). Pp. 1-2 (external quotation marks omitted and internal citations and quotations preserved).
In light of other criminal cases coming out of the Bronx (e.g. Kalief Browder), it is important to emphasize the neutral role the judge is to play while making sure the rights of the defendant are not violated by the prosecutor. In this case, the First Department concluded that “there is a significant probability that defendant would have been acquitted if not for the violation of his right of confrontation, the prosecutor’s improper statements in summation, and the court’s improper statements during deliberation.” Pp. 2 (citing People v Crimmins, 36 NY2d 230, 242 (1975)). The case is People v DeJesus, 2015 NY Slip Op 08959, (1st Dep’t. Dec. 8, 2015). A new trial was ordered. The case is People v DeJesus, 2015 NY Slip Op 08959.