People v. Purcell

• Decision Date: 19 July 1984
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel D. PURCELL, III, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 768

479 N.Y.S.2d 768

103 A.D.2d 938

The PEOPLE of the State of New York, Respondent, v. Daniel D. PURCELL, III, Appellant.

Supreme Court, Appellate Division Third Department.

July 19, 1984.

O'Connell & Aronowitz, P.C., Albany (Stephen R. Coffey, Albany, of counsel), for appellant.

Charles J. Wilcox, Dist. Atty., Troy, for respondent.

Before KANE, J.P., and MAIN, WEISS, MIKOLL and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Rensselaer County, rendered December 28, 1982, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

At approximately 4:45 A.M. on March 13, 1982, defendant, an off-duty City of Troy police officer, fatally wounded David D. Forette with a .25 caliber handgun in Troy. The trial evidence showed that defendant, who had been off duty since 11:30 P.M., was seated with several employees of Petar's Grill when Forette's companion, one Jerome Graham, peered into the window at which time the doorman shouted a racial slur, evoking an obscene hand gesture from Graham. An argument ensued on the street between the two groups, replete with name-calling and obscenities, and ended with Forette's group continuing north on River Street. Shortly thereafter, defendant and three others left the bar in defendant's car and proceeded in the wrong direction (north) on one-way River Street until they encountered Forette's group at the confluence of River, Third and Fulton Streets. When Forette stepped in front of defendant's vehicle, the confrontation resumed. Defendant's group exited the vehicle and followed the Forette group onto Fulton Street. As the groups dispersed, Forette walked toward the north side of Fulton Street, picked up an empty bottle, broke it against a brick wall and approached defendant, who was standing in the middle of Fulton Street. As he drew near, defendant shot Forette in the stomach. Forette died a short time later. Defendant was indicted for manslaughter in the first degree and, following a trial in which the defense of justification was raised, he was convicted as charged. This appeal ensued.

Initially, defendant argues that the trial court erred in allowing the jury to view the scene of the incidents described above, after the close of the evidence and prior to summations. We disagree. CPL 270.50 (subd. 1) authorizes a trial court to permit a jury view at "any time before the commencement of the summations" if the view "will be helpful to the jury in determining any material factual issue". During a recess, the trial court was advised that two jurors may have been in the vicinity of the crime scene despite the court's admonition to avoid that area. The court advised both defense counsel and the prosecution of this information, neither of whom requested further investigation of the matter. At the close of the evidence, however, the prosecutor requested a jury view. The trial court granted the motion over defendant's objection for essentially two reasons: to temper any prejudice emanating from the possibility that two jurors may have viewed the area, and to familiarize all the jurors with the area. The view was conducted during the afternoon of December 3, 1982.

Contrary to defendant's contention, we consider the area involved to be sufficiently uncommon so that a view would be helpful to the jurors in their deliberations (see People v. Hamel, 96 A.D.2d 644, 645, 466 N.Y.S.2d 748, lv. to app. den. 61 N.Y.2d 674, 460 N.E.2d 238). The trial court emphasized that the purpose of the view was to familiarize the jurors with the scene so they could physically place the buildings and roads when examining the exhibits. A significant effort, including the introduction of photographs, charts and diagrams, was made by both parties during the trial to pinpoint the precise locations of defendant and the victim throughout the incident. Accordingly, we find no abuse of the trial court's discretion in authorizing the view. Nor can we agree that the scene had so materially changed as to render the view improper (cf. People v. McCurdy, 86 A.D.2d 493, 450 N.Y.S.2d 507). Although it is obvious that the lighting and traffic conditions were different than at the time of the shooting, the court properly emphasized that the view was merely to observe the area and instructed the jury that their deliberations should be based solely on the evidence. Moreover, that the jury viewed the scene during the day, instead of at night when the shooting occurred, is of no consequence concerning defendant's ability to observe Forette, since defendant confirmed that he watched Forette pick up the bottle, break it and approach him. Finally, defendant's contention that the view was conducted in a "circus atmosphere" is not supported in the record.

Next, defendant maintains that the trial court erred in permitting several of the prosecutor's challenges for cause during voir dire. We disagree. Although the prosecutor utilized only 13 of its 15 allotted peremptory challenges (CPL 270.25, subd. 2, par ), defendant argues that the challenged rulings effectively and unfairly allowed the prosecutor additional peremptory challenges (see Matter of State of New York v. King, 47 A.D.2d 594, 595, 363 N.Y.S.2d 682, rev'd on other grounds 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351). During the initiation of jury selection, the court inquired as to whether any of the prospective jurors had formed an opinion as to the guilt or innocence of defendant. The court specifically directed that no opinions be expressed. When two of the prospective jurors indicated that they had formed opinions, the court inquired as to whether each could still sit as a fair and impartial juror. At this point, one juror, a Mr. Mantello, blurted out, "I think he's innocent. I would like--I ain't got no opinion. I think he's innocent." Mantello was then excused and, upon motion of the prosecutor, the entire jury panel present during Mantello's outburst was also excused. Defendant contends that the trial court erred in excusing Mantello without first affording him a chance to take an "expurgatory oath". The contention is without merit.

In People v. Blyden (55 N.Y.2d 73, 447 N.Y.S.2d 886, 432 N.E.2d 758), the Court of Appeals...