People v. Stewart

• Citation: 586 N.Y.S.2d 174,185 A.D.2d 677
• Parties: PEOPLE of the State of New York, Respondent, v. Gary Anthony STEWART, Appellant.
• Decision Date: 14 July 1992
• Court: New York Supreme Court Appellate Division

Page 174

586 N.Y.S.2d 174

185 A.D.2d 677

PEOPLE of the State of New York, Respondent, v. Gary Anthony STEWART, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

July 14, 1992.

Gerald T. Barth by W. Benjamin Coffin, Syracuse, for appellant.

William J. Fitzpatrick by James Cecile, Syracuse, for respondent.

Before CALLAHAN, J.P., and GREEN, BOEHM and DAVIS, JJ.

MEMORANDUM:

County Court erred in denying defendant's challenge of a prospective juror for cause. Defendant used one of his peremptory challenges to excuse the prospective juror and thereafter exhausted his peremptory challenges. When questioned by defense counsel, the prospective juror admitted that it would be difficult for him to set aside information he had received from news accounts of the crime. Although the prospective juror stated that this would make it difficult for him to be impartial, County Court considered that to be insufficient justification for disqualifying him.

It is well settled that a trial court "should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve" (People v. Branch, 46 N.Y.2d 645, 651, 415 N.Y.S.2d 985, 389 N.E.2d 467; see also, CPL 270.20 [1] [b]; People v. Torpey, 63 N.Y.2d 361, 482 N.Y.S.2d 448, 472 N.E.2d 298, rearg. denied 64 N.Y.2d 885, 487 N.Y.S.2d 1029, 476 N.E.2d 1008; People v. Blyden, 55 N.Y.2d 73, 447 N.Y.S.2d 886, 432 N.E.2d 758; People v. Culhane, 33 N.Y.2d 90, 350 N.Y.S.2d 381, 305 N.E.2d 469). While it is true that the jury need not be totally ignorant of the facts and issues involved (see, People v. Culhane, supra), and a juror is not subject to disqualification because he has read newspaper accounts of the crime (People v. Butts, 140 A.D.2d 739, 527 N.Y.S.2d 880; People v. Taylor, 97 A.D.2d 983, 468 N.Y.S.2d 777), when it is shown that there is a substantial risk that a juror may not be impartial, he should be excused. In the absence of any showing that the prospective juror could lay aside the information that he had and render a verdict based solely upon the evidence (see, People v. Parnes, 161 A.D.2d 615, 555 N.Y.S.2d 396), the denial of a challenge for cause was error and defendant's conviction must be reversed (see, CPL 270.20 [2]; People v. Culhane, supra).

In light of our reversal we need not address defendant's remaining contentions. We alert County Court's attention, however, to the number of times we have disapproved of its charge defining reasonable doubt (see, People v. Bussey, 185 A.D.2d 685, 587 N.Y.S.2d 883; People v. DeMott, 178 A.D.2d 935, 578 N.Y.S.2d 739; People v. Green, 155 A.D.2d 880, 547 N.Y.S.2d 715, lv. denied 75 N.Y.2d 813, 552 N.Y.S.2d 563, 551 N.E.2d 1241; People v. Phoenix, 148 A.D.2d 942, 540 N.Y.S.2d 211, lv. denied 73 N.Y.2d 1020, 541 N.Y.S.2d 774, 539 N.E.2d 602; People v. Jimenez, 147 A.D.2d 905, 537 N.Y.S.2d 380, lv. denied 73 N.Y.2d 978, 540 N.Y.S.2d 1012, 538 N.E.2d 364; People v. Luis, 145 A.D.2d 960, 961, 536 N.Y.S.2d 332, lv. denied 73 N.Y.2d 923, 539 N.Y.S.2d 308, 536 N.E.2d 637; People...