People v. Tate, 16281

CourtNew York Supreme Court Appellate Division
Citation2022 NY Slip Op 05286
Docket Number16281,Ind. No. 2931/18,Case No. 2020-00324
PartiesThe People of the State of New York, Respondent, v. Phyllis Tate, Defendant-Appellant.
Decision Date27 September 2022

2022 NY Slip Op 05286

The People of the State of New York, Respondent,

Phyllis Tate, Defendant-Appellant.

Appeal No. 16281, Ind. No. 2931/18, Case No. 2020-00324

Supreme Court of New York, First Department

September 27, 2022

Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

Before: Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.

Judgment, Supreme Court, New York County (Michele S. Rodney, J.), rendered November 8, 2019, convicting defendant, after a jury trial, of arson in the second degree and reckless endangerment in the first degree, and sentencing her to an aggregate term of six years on the arson count, unanimously reversed, on the law, and the matter remanded for a new trial.

Defendant's challenge for cause to a prospective juror should have been granted. The challenged panelist, who had many connections to law enforcement, stated "I'm definitely bias[ed] toward law enforcement, toward police officers. I know a lot of cops. If you ask me a plain question, I'll say yes." This was clearly an acknowledgment of a state of mind likely to preclude the rendering of an impartial verdict (see CPL 270.20[1][b]). However, the court did not elicit an unequivocal assurance that the panelist would set aside any bias and render an impartial verdict based on the evidence (see People v Johnson, 94 N.Y.2d 600, 614 [2000]).

Instead, the court asked if the panelist could "evaluate the testimony," and if a witness was "not telling the truth" and "happen[ed] to be a police officer," would he "disregard that just because [his] best friend is a cop?" The court's question was not properly framed to elicit an assurance of impartiality. When the panelist, somewhat confused by the court's inquiry, replied, "No, if I'm understanding your question, I wouldn't," he did no more than confirm that in the event he actually found an officer's testimony to be perjurious, the panelist would not overlook that fact because of his pro-police bias. The court's next question - "You would be able to evaluate?" - and the panelist's response that he "would be able to," likewise fell short of the required express and unequivocal declaration (see People v Blyden, 55 N.Y.2d 73, 79 [1982]). "If there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing...

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