People v. McClary
| Decision Date | 17 May 1989 |
| Citation | 541 N.Y.S.2d 503,150 A.D.2d 631 |
| Parties | The PEOPLE, etc., v. David McCLARY, Defendant. |
| Court | New York Supreme Court — Appellate Division |
Before MOLLEN, P.J., and MANGANO, THOMPSON, BROWN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
Motion by the defendant for a change of venue of his trial on Queens County Indictment No. 1662/88 from Queens County to another county to be designated by this court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied.
Following the completion of jury selection at his trial on Queens County Indictment No. 1662/88, the defendant has moved pursuant to CPL 230.20(2) for a change of venue. The defendant claims that he cannot obtain a fair and impartial trial in Queens County on charges arising out of the murder of New York City Police Officer Edward Byrne. The People oppose the application. We conclude, based upon the papers submitted by both sides, that the defendant has failed to demonstrate that he cannot obtain a fair and impartial trial by reason of pretrial publicity.
On February 26, 1988, Officer Byrne was shot to death while he sat in his patrol car in Jamaica, Queens, guarding the home of a witness in a drug case. It is the theory of the prosecution that Officer Byrne was executed on orders of a reputed drug kingpin in retaliation for the latter's arrest, conviction and imprisonment on gun possession charges. Four individuals were charged with murder in the second degree as a result of this crime--three codefendants, Scott Cobb, Todd Scott and Philip Copeland, who were previously tried and convicted--and the defendant.
The killing of Officer Byrne has been the subject of pervasive and, at times, highly emotional media coverage. News coverage intensified during the recent month-long trial of the codefendants, culminating in their conviction on March 29, 1989. The killing of Officer Byrne has also been the subject of much editorial comment decrying the brazen violence employed by those immersed in drug trafficking. The killing has served as a rallying cry for those who seek the reimposition of the death penalty.
The defendant contends that the effect of the extensive publicity surrounding the death of Officer Byrne and the prosecution of the codefendants makes it impossible for him to receive a fair and impartial trial in Queens County and therefore a change of venue is required. We disagree.
The defendant has not established "reasonable cause to believe that a fair and impartial trial cannot be had" (CPL 230.20[2] in Queens County. As the defendant readily admits, this court has never adopted a "bright-line test whereby a fixed percentage of veniremen expressing a preconceived opinion, standing alone,...
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