People v. Molinari

• Decision Date: 13 July 1998
• Parties: , 1998 N.Y. Slip Op. 7023 The PEOPLE, etc., Respondent, v. Kenneth MOLINARI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 106

678 N.Y.S.2d 106

252 A.D.2d 532, 1998 N.Y. Slip Op. 7023

The PEOPLE, etc., Respondent, v. Kenneth MOLINARI, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 13, 1998.

Mahler, Miller, Harris & Engel, P.C., Kew Gardens (Stephen R. Mahler, of counsel), for appellant.

Denis Dillon, District Attorney, Mineola (Bruce E. Whitney and Margaret E. Mainusch, of counsel), for respondent.

O'BRIEN, J.P., and SANTUCCI, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered November 18, 1997, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

We agree with the defendant that the trial court erred in refusing to dismiss prospective juror No. 9 for cause. The juror indicated that he believed that an individual accused of a crime was probably guilty. 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 must state unequivocally that he or she would be able to render a verdict based solely on the evidence adduced at trial (see, People v. Torpey, 63 N.Y.2d 361, 367, 482 N.Y.S.2d 448, 472 N.E.2d 298; People v. Blyden, 55 N.Y.2d 73, 77-78, 447 N.Y.S.2d 886, 432 N.E.2d 758; People v. Davis, 248 A.D.2d 399, 669 N.Y.S.2d 827).

Here, the juror's responses to further questioning fell short of the necessary unequivocal declaration of impartiality as he continued to adhere to his belief that an individual accused of a crime "most probably did it" (see, People v. Davis, supra; People v. Johnson, 245 A.D.2d 305, 670 N.Y.S.2d 119; People v. Jordan, 90 N.Y.2d 940, 664 N.Y.S.2d 759, 687 N.E.2d 656). Because defense counsel then exercised a peremptory challenge against this prospective juror and eventually exhausted his peremptory challenges, the defendant's conviction must be reversed (see, People v. Torpey, 63 N.Y.2d 361, 482 N.Y.S.2d 448, 472 N.E.2d 298; People v. Johnson, supra; CPL 270.20[2] ).

Since there must be a new trial, we have considered the defendant's contention that the tape of a 911 call made by an eyewitness was inadmissible hearsay. We conclude that the trial court properly determined that the tape was admissible as an excited utterance exception to the hearsay rule (see, People v. Vasquez, 88...