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

116
KA 14-00578
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ULYSSES M. BETANCES, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARTER SECREST & EMERY
LLP (MICHAEL J. ROONEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered January 21, 2014. The judgment
convicted defendant, upon a jury verdict, of aggravated driving while
intoxicated.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of aggravated driving while intoxicated (Vehicle and Traffic
Law § 1192 [2-a] [b]), defendant contends that Supreme Court abused
its discretion in denying his challenge for cause to prospective juror
No. 13. We agree. We therefore reverse the judgment and grant a new
trial on counts one and two of the indictment.

     “It is well settled that ‘a prospective juror whose statements
raise a serious doubt regarding the ability to be impartial must be
excused unless the [prospective] juror states unequivocally on the
record that he or she can be fair and impartial’ ” (People v Odum, 67
AD3d 1465, 1465, lv denied 14 NY3d 804, reconsideration denied 15 NY3d
755, cert denied 562 US 931, quoting People v Chambers, 97 NY2d 417,
419). Although CPL 270.20 (1) (b) “does not require any particular
expurgatory oath or ‘talismanic’ words . . . , [prospective] jurors
must clearly express that any prior experiences or opinions that
reveal the potential for bias will not prevent them from reaching an
impartial verdict” (People v Arnold, 96 NY2d 358, 362; see People v
Mitchum, 130 AD3d 1466, 1467). “Prospective jurors who make
statements that cast serious doubt on their ability to render an
impartial verdict, and who have given less-than-unequivocal assurances
of impartiality, must be excused” (Arnold, 96 NY2d at 363; see People
v Harris, 19 NY3d 679, 685).
                                 -2-                           116
                                                         KA 14-00578

     Here, in response to the prosecutor’s question regarding whether
any member of the panel thought that he or she could not be fair and
impartial due to the allegations of driving while intoxicated,
prospective juror No. 13 indicated that, due to situations in her
past, she did not see any reason why anyone would need to drink and
drive, and she could not be fair and impartial. Upon follow-up
questioning by the court, she assured the court that she could set
those feelings aside. Later, however, in response to defense
counsel’s questions, prospective juror No. 13 indicated that she had
wondered what defendant did wrong when she first walked into the
courtroom, and that “obviously” she felt that “he must have done
something wrong or he wouldn’t have” been in court. The court asked
follow-up questions, but cut off the prospective juror before she
could reply to one such question, and the court’s final substantive
question failed to establish the prospective juror’s state of mind.
Consequently, the court abused its discretion in denying defendant’s
challenge for cause to prospective juror No. 13. Defendant exhausted
all of his peremptory challenges before the completion of jury
selection and thus the denial of his challenge for cause is preserved
for our review (see CPL 270.20 [2]; Harris, 19 NY3d at 685), and
constitutes reversible error (see People v Harris, 23 AD3d 1038, 1038;
People v Brzezicki, 249 AD2d 917, 918-919; see also People v Casillas,
134 AD3d 1394, 1396).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
