        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

8
KA 07-01257
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARLO L. COLLIER, ALSO KNOWN AS “KILLER,”
DEFENDANT-APPELLANT.


MULDOON & GETZ, ROCHESTER (JON P. GETZ OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered January 9, 2007. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree, robbery in the first degree, kidnapping in the second degree
and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[3]), robbery in the first degree (§ 160.15 [2]), kidnapping in the
second degree (§ 135.20), and assault in the second degree (§ 120.05
[2]). Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to establish his identity as one
of the perpetrators of the offenses inasmuch as he made only a general
motion for a trial order of dismissal (see People v Gray, 86 NY2d 10,
19). Contrary to defendant’s further contention, viewing the evidence
in light of the elements of the crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).

     We agree with defendant, however, that he was deprived of a fair
trial by references to his nickname, “Killer,” made by two prosecution
witnesses and by the prosecutor five times during summation. To the
extent that this issue is not preserved for our review (see People v
Caver, 302 AD2d 604, 604, lv denied 99 NY2d 653), we agree with
defendant that he was deprived of effective assistance of counsel
based on defense counsel’s failure to object when the prosecutor
elicited that testimony and made those remarks on summation (see
                                 -2-                             8
                                                         KA 07-01257

People v Webb, 90 AD3d 1563, 1564-1565, amended on rearg 92 AD3d
1268). The references to defendant’s nickname were highly prejudicial
and had minimal, if any, probative value inasmuch as the witnesses
knew defendant by his given name (see id. at 1565; People v Santiago,
255 AD2d 63, 66, lv denied 94 NY2d 829; cf. People v Tolliver, 93 AD3d
1150, 1150-1151, lv denied 19 NY3d 968). At one point during his
summation, the prosecutor remarked that “[o]n the street [defendant]
has another nickname, it is Killer. There’s a reason for that.” In
doing so, the prosecutor was improperly urging the jurors to “consider
defendant’s nickname as evidence that he [committed murder]” (Webb, 90
AD3d at 1565).

     We further agree with defendant that reversal is warranted based
on Supreme Court’s dismissal of the first jury panel. The first jury
panel of approximately 36 people were sworn, and the court called 14
prospective jurors to be seated in the jury box. The court asked
preliminary questions and, as the court excused certain prospective
jurors based on inconvenience or hardship, the court would seat
another prospective juror in the jury box. After the court excused
approximately 10 prospective jurors, defense counsel informed the
court that he was “concerned about the fact that the [c]ourt [wa]s
frustrated with the excuses,” and was “afraid of the spi[ll]-over
effect to the other [prospective] jurors sitting there[, who may] . .
. be more defensive than they should be and more disdainful of the
fact that they [we]re being kept” there. The court did not agree with
defense counsel that the prospective jurors had been angered by its
comments, but asked whether defense counsel wanted the court to
discharge the entire panel. Although defense counsel repeatedly
answered no, the court discharged the panel. That was error.

     Where, as here, a jury panel is “properly drawn and sworn to
answer questions truthfully, there must be legal cause or a peremptory
challenge to exclude a [prospective] juror” (People v Thorpe, 223 AD2d
739, 740, lv denied 88 NY2d 1025; see CPL 270.05 [2]). By dismissing
the entire jury panel without questioning the ability of the
individual prospective jurors to be fair and impartial (see generally
People v Wells, 7 NY3d 51, 59-60), the court deprived defendant of a
jury chosen “at random from a fair cross-section of the community”
(Judiciary Law § 500; see CPL 270.05 [2]; People v Roblee, 70 AD3d
225, 228-230).

     In light of our determination, we do not address defendant’s
remaining contentions.




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
