People v. Wiegert

• Decision Date: 13 March 1998
• Parties: 1998 N.Y. Slip Op. 2423 PEOPLE of the State of New York, Respondent, v. Gary L. WIEGERT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 128

670 N.Y.S.2d 128

1998 N.Y. Slip Op. 2423

PEOPLE of the State of New York, Respondent, v. Gary L. WIEGERT, Appellant.

Supreme Court of New York, Appellate Division Fourth Department.

March 13, 1998.

Anthony Leonardo, Jr., Rochester, for appellant.

Richard M. Healy by Mary Anne Kolb, Lyons, for respondent.

MEMORANDUM:

County Court did not abuse its discretion in denying defendant's challenges for cause of three prospective jurors. The prospective juror who stated that she was influenced by the opinions of her father-in-law, a correction officer, did not exhibit actual bias toward defendant or otherwise indicate that she possessed "a state of mind that [was] likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL 270.20[1][b]; see, People v. Stone, 239 A.D.2d 872, 659 N.Y.S.2d 674, lv. denied 90 N.Y.2d 943, 664 N.Y.S.2d 762, 687 N.E.2d 659; People v. Archer, 210 A.D.2d 241, 619 N.Y.S.2d 738, lv. denied 84 N.Y.2d 1028, 623 N.Y.S.2d 184, 647 N.E.2d 456). The prospective juror who expressed sympathy towards children and concern about evaluating their testimony stated unequivocally that she could evaluate the evidence fairly and impartially and that her feelings would not affect her ability to discharge her responsibilities as a juror (see, People v. Williams, 63 N.Y.2d 882, 885, 483 N.Y.S.2d 198, 472 N.E.2d 1026; People v. Whitmore, 177 A.D.2d 525, 525-526, 575 N.Y.S.2d 914, lv. denied 79 N.Y.2d 866, 580 N.Y.S.2d 738, 588 N.E.2d 773, 80 N.Y.2d 840, 587 N.Y.S.2d 924, 600 N.E.2d 651; cf., People v. Lawrence, 159 A.D.2d 518, 552 N.Y.S.2d 385). Defendant waived his contention with respect to the third prospective juror by failing to exercise a peremptory challenge to strike that juror when he had peremptory challenges remaining (see, CPL 270.20[2]; People v. Pagan, 191 A.D.2d 651, 595 N.Y.S.2d 486, lv. denied 81 N.Y.2d 1017, 600 N.Y.S.2d 206, 616 N.E.2d 863). We reject the contention that the court improperly reserved decision on the People's claim under Batson v. Kentucky (476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) that defendant was using his peremptory challenges in a discriminatory manner to exclude women from the jury.

The court did not err in giving a second Allen charge to the jury (see, People v Brooks, 152 A.D.2d 591, 591-592, 543 N.Y.S.2d 704, lv. denied 75 N.Y.2d 964, 556 N.Y.S.2d 249, 555 N.E.2d 621); the charge was balanced and did not coerce the jury to reach a verdict (see, People v. Abston, 229 A.D.2d 970, 645 N.Y.S.2d 690, lv. denied 88 N.Y.2d 1066, 651 N.Y.S.2d 410, 674 N.E.2d 340; cf., People v. Rodriguez, 141 A.D.2d 382, 385-386, 529 N.Y.S.2d 318). The contention that the court did not respond meaningfully to the jury's request for a readback of testimony is not preserved for our review (see, CPL 470.05[2] ), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

We reject defendant's contention that the sentence is unduly harsh or severe. We modify the sentence, however, by directing that the definite term of one year of incarceration imposed on defendant's conviction of sexual abuse in the second degree run concurrently with the indeterminate sentences imposed under counts one, seven,...