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

739
KA 11-00202
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEROLD N. MITCHUM, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARTER SECREST & EMERY
LLP (MAURA C. MCGUIRE OF COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Monroe County Court (Robert B.
Wiggins, A.J.), rendered December 22, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (two counts), criminal possession of a weapon in the
third degree, and criminally using drug paraphernalia in the second
degree (two counts).

     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,
following a jury trial, of two counts each of criminal possession of a
weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]) and
criminally using drug paraphernalia in the second degree (§ 220.50
[2], [3]), and one count of criminal possession of a weapon in the
third degree (§ 265.02 [1]). Defendant contends that County Court
erred in denying his challenge for cause to a prospective juror whose
statements during voir dire cast doubt on the prospective juror’s
ability to be impartial. We agree.

     It is well established that “[p]rospective 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” (People v Arnold, 96 NY2d 358, 363;
see People v Nicholas, 98 NY2d 749, 750; People v Chambers, 97 NY2d
417, 419). While no “particular expurgatory oath or ‘talismanic’
words [are required,] . . . [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”
(Arnold, 96 NY2d at 362; see People v Strassner, 126 AD3d 1395, 1396).
Here, the statement of a prospective juror during voir dire with
respect to the credibility of the testimony of police officers or bias
                                 -2-                           739
                                                         KA 11-00202

in favor of the police cast serious doubt on his ability to render an
impartial verdict (see Nicholas, 98 NY2d at 751-752; Strassner, 126
AD3d at 1396; People v Lewis, 71 AD3d 1582, 1583-1584), and that
prospective juror failed to provide “unequivocal assurance that [he
could] set aside any bias and render an impartial verdict based on the
evidence” (People v Johnson, 94 NY2d 600, 614). Contrary to the
court’s conclusion, we conclude that the prospective juror’s answers
to the questions asked by the court after he expressed bias toward the
police were “insufficient to constitute such an unequivocal
declaration” (People v Bludson, 97 NY2d 644, 646; see Strassner, 126
AD3d at 1396). “Inasmuch as defendant had exhausted all of his
peremptory challenges before the completion of jury selection, the
denial of defendant’s challenge[] for cause constitutes reversible
error” (Strassner, 126 AD3d at 1396; see CPL 270.20 [2]).

     Contrary to the further contention of defendant, we conclude that
the court properly refused to suppress evidence seized from his home.
Contrary to defendant’s contention, the confidential informant’s basis
of knowledge was sufficiently established at the in camera Darden
hearing (see People v Darden, 34 NY2d 177). “Without disclosing the
exact substance of the Darden hearing testimony, we conclude that the
information from the informant, in its totality, provided ample basis
to conclude that the informant had a basis for his or her knowledge
that defendant was in possession of [drugs or drug paraphernalia]”
(People v Knight, 94 AD3d 1527, 1528-1529, lv denied 19 NY3d 998
[internal quotation marks omitted]). We further conclude that the
hearsay information supplied in the search warrant application
satisfied the two prongs of the Aguilar-Spinelli test and that the
search warrant was issued upon probable cause (see People v Monroe, 82
AD3d 1674, 1675, lv denied 17 NY3d 808; People v Flowers, 59 AD3d
1141, 1142-1143; People v Hernandez, 262 AD2d 1032, 1032, lv denied 94
NY2d 863). In view of the quality of the confidential informant’s
information, it is irrelevant that the controlled buy did not occur at
defendant’s home (see People v Myhand, 120 AD3d 970, 974, lv denied 25
NY3d 952). Consequently, although we agree with defendant that we
cannot uphold the suppression ruling based on the eavesdropping
information inasmuch as the court did not rely on that information in
refusing to suppress the evidence (see People v Concepcion, 17 NY3d
192, 195; People v Roosevelt, 125 AD3d 1452, 1454), we reject
defendant’s contention that the evidence recovered from his residence
should have been suppressed.




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
