People v. Boudin

• Decision Date: 02 December 1983
• Citation: 97 A.D.2d 84,469 N.Y.S.2d 89
• Parties: The PEOPLE, etc., Plaintiff, v. Kathy BOUDIN and Samuel Brown, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 89

469 N.Y.S.2d 89

97 A.D.2d 84

The PEOPLE, etc., Plaintiff, v. Kathy BOUDIN and Samuel Brown, Defendants.

Supreme Court, Appellate Division,

Second Department.

Dec. 2, 1983.

Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City (Leonard I. Weinglass of counsel), for defendant Boudin.

Robert N. Isseks, Middletown, for defendant Brown.

Kenneth Gribetz, Dist. Atty., New City (John S. Edwards, New City, of counsel), for plaintiff.

Before TITONE, J.P., and MANGANO, THOMPSON and BROWN, JJ.

PER CURIAM:

This is a renewed application for a change of venue brought by the defendant Kathy Boudin and joined in by her codefendant Samuel Brown. It is brought as a consequence of an earlier decision of this court (People v. Boudin, 95 A.D.2d 463, 467 N.Y.S.2d 261 (2d Dept., 1983)), wherein it was concluded that while a change of the trial site at that stage of the proceedings was not warranted, the defendants might renew their application after the completion of the voir dire of potential jurors.

We now conclude, based upon the circumstances that have occurred since the last application was denied, that the defendants have satisfactorily demonstrated that there is "reasonable cause to believe that a fair and impartial trial cannot be had" in Orange County (CPL 230.20, subd. 2).

The Supreme Court of the United States has expressed its concern that a fair and impartial jury cannot be drawn in a community where "most veniremen will admit to a disqualifying prejudice" (Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589), because "it is * * * more probable that they [the veniremen] are part of a community deeply hostile to the accused and more likely that they may unwittingly have been influenced by it" (Murphy v. Florida, supra, p. 803, 95 S.Ct. p. 2037; see, also, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751). To our knowledge no court has articulated a bright-line test whereby a fixed percentage of veniremen expressing a preconceived opinion, standing alone, requires a change of venue. We decline to adopt such a test today. Rather, as recently noted by the United States Court of Appeals for the Fifth Circuit, "detection of actual prejudice is not accomplished through juggling statistics" (United States v. Dozier, 5 Cir., 672 F.2d 531, 546, cert. den. 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200; see Yount v. Patton, 3 Cir., 710 F.2d 956, 978 [GARTH, J., concurring], cert. granted 464 U.S. 913, 104 S.Ct. 272, 76 L.Ed.2d ---- (1983)).

Evaluating the totality of the circumstances of this case (see Murphy v. Florida, supra ), including the nature of the crimes charged, the fact that the movants' former codefendants have recently been tried for the same crimes in Orange County, the nature and extent of the pretrial publicity (most significantly the publicity since the completion of the previous trial and the former codefendants' sentencing, which occurred two days after the last application), and the size and homogeneity of the community combined with the percentage of veniremen having expressed an opinion which they cannot set aside, we are convinced that the stringent standards necessary for a change of venue have now been met.

We stress that our determination does not in any way depart from the principles and conclusions expressed in our previous decisions. While some of the factors alluded to were present when we considered the earlier applications, it is the combination of all the factors, especially those occurring since the last application, which we find to be controlling.

In our view, there is no purpose to be achieved by awaiting the results of a completed voir dire. The initial screening of potential veniremen has been completed. It is conceded that 1172 out of 2115 persons, or approximately 55% of the persons questioned, acknowledged a preconceived opinion about the case which they could not set aside. Approximately 430 persons indicated by their silence that they did not believe themselves to be prejudiced against the defendants. The District Attorney's assertion that 12 jurors may ultimately be found who will steadfastly maintain their impartiality is, under the circumstances of this case, beside the point. As noted above, such assertions have been held to be inherently suspect ...