                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     105770
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
JEREMIAH HAMILTON, Also Known
   as KELLAN BROWN, Also Known
   as HAVOC,
                    Appellant.
________________________________


Calendar Date:   February 11, 2015

Before:   Peters, P.J., Garry, Rose and Lynch, JJ.

                             __________


     Cynthia Feathers, Glens Falls, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter
Willis of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Schenectady
County (Drago, J.), rendered October 24, 2012, upon a verdict
convicting defendant of the crimes of murder in the second
degree, attempted murder in the second degree, criminal
possession of a weapon in the second degree (two counts) and
reckless endangerment in the first degree.

      In September 2008, the victim was shot and killed in the
City of Schenectady, Schenectady County while standing close to
an individual with whom defendant had quarreled earlier that day.
Defendant was indicted on charges of murder in the second degree,
attempted murder in the second degree, criminal possession of a
                              -2-                105770

weapon in the second degree (two counts) and reckless
endangerment in the first degree. Following a jury trial, he was
convicted as charged and sentenced to an aggregate prison term of
40 years to life, plus five years of postrelease supervision.
Defendant appeals.

      Defendant contends that his convictions for murder in the
second degree and attempted murder in the second degree are not
supported by legally sufficient evidence and are against the
weight of the evidence. To convict defendant of murder in the
second degree, the People were required to prove that "[w]ith
intent to cause the death of another person, he cause[d] the
death of such person or of a third person" (Penal Law § 125.25
[1]). The conviction for attempted murder in the second degree
required proof that "with the intent to cause the death of
another person, [defendant] engage[d] in conduct which tend[ed]
to effect commission of that crime" (People v Fernandez, 88 NY2d
777, 783 [1996]; see Penal Law §§ 110.00, 125.25 [1]).

      Taken together, the trial testimony of multiple witnesses
established that a dispute erupted between defendant and Victor
Toomer while they were playing dice in the street with several
other men. Defendant allegedly exclaimed, "You cheated me" and
punched Toomer. Defendant was chased down the street by Toomer
and the other men and escaped, warning that he would be back.
Defendant went to a house in an adjoining neighborhood, where he
asked for a gun, stating that "somebody around the corner was
trying to play him" and that he was "going to go over there and
take care of it." An alleged leader of the Bloods gang directed
another man to give defendant the gun and directed the victim to
accompany defendant when he returned to the street where Toomer
was, to "make sure he was all right." When they returned to the
scene of the dice game, the victim – who had a friendly
relationship with Toomer – crossed the street and began speaking
with him, trying to mediate the dispute. Meanwhile, defendant
remained on the other side of the street and, according to
Toomer's testimony, "[took] cover behind [a] car." Toomer and
the victim stood close together as they were speaking, and Toomer
asked the victim what he was there to do. The victim responded,
"I didn't know it was you," and said that he wanted to settle the
disagreement. Toomer then saw defendant "duck a little bit under
                              -3-                105770

the car" and then "come over the car and start[] shooting."
Witnesses heard several gunshots. One witness saw defendant
"crouch down" behind the car just before the gunshots rang out,
and another saw defendant fire the gun. The victim was struck in
the head by a bullet and fell to the ground. Toomer removed a
gun from the victim's waistband and fired at defendant, who fled.
Defendant then allegedly returned to the house where he had
obtained the gun and returned it to the owner after wiping it
down. When asked about the victim's whereabouts, defendant
allegedly claimed that he "ran the other way."

      A detective who investigated the crime scene found two .25
caliber shell casings near a car across the street from the
victim's body, as well as several .22 caliber casings closer to
the body. He opined that the person who fired the .25 caliber
weapon was standing near the car and across the street from the
victim. Two days later, police stopped the man who had given
defendant the gun for an unrelated infraction and found that he
was carrying a .25 caliber handgun. Subsequent testing revealed
that a bullet test-fired from this gun was consistent with the
projectile found in the victim's head.

      Defendant fled to Pennsylvania, where he was subsequently
arrested. He told police that he was on the street where the
victim was shot, but claimed that he was smoking marihuana with a
friend and fled when he heard the gunshots. A woman who was
dating defendant at the time of the shooting testified that he
told her that he got into a dispute with another "kid" while
playing dice, and that after defendant returned to the scene, the
victim "got in the middle trying to play peacemaker." Defendant
said that the other "kid" fired a gun at defendant, and he fired
back and ran away. A witness who was incarcerated with defendant
testified that he asked defendant whether he had shot the victim
and defendant responded, "[C]ome on, like he shouldn't have been
trying to play peacemaker in the process of me letting it go."
The witness said that defendant made a shooting motion with his
hand while he said "letting it go," and that defendant added that
he "didn't mean for it to go down the way it [did]."

      Defendant argues that the evidence establishes that his
target was Toomer, not the victim, and that the People neither
                              -4-                105770

proved that he intended to kill the victim, nor that he intended
to kill – rather than frighten or injure – Toomer. However,
under the doctrine of transferred intent, a defendant who intends
to cause the death of one individual but instead causes the death
of another, unintended victim bears the same criminal liability
as that which would have resulted if the intended target had been
killed (see People v Fernandez, 88 NY2d at 781-782; People v
Molina, 79 AD3d 1371, 1373-1374 [2010], lv denied 16 NY3d 861
[2011]; People v Ballard, 38 AD3d 1001, 1003 [2007], lv denied 9
NY3d 840 [2007]). Further, the intent to kill may be inferred
from the surrounding circumstances and a defendant's actions,
"and indeed this may be the only way of proving intent in the
typical case of criminal attempt" (People v Bracey, 41 NY2d 296,
301 [1977] [internal quotation marks and citation omitted]; see
People v Johnson, 106 AD3d 1272, 1278 [2013], lvs denied 21 NY3d
1041, 1043, 1045, 1046 [2013]). Contrary to defendant's
assertion, there is no legal inconsistency, in light of the
evidence presented, with the jury finding defendant guilty of
both murder for the death of the victim, based upon a theory of
transferred intent, and attempted murder, based upon his intent
to kill Toomer (see People v Casseus, 120 AD3d 828, 829 [2014]).
Viewing the evidence in the light most favorable to the People,
we find that the proof was legally sufficient to support
defendant's convictions of these crimes (see People v Culpepper,
118 AD2d 866, 866 [1986], lv denied 68 NY2d 667 [1986]; see also
People v Miller, 118 AD3d 1127, 1128 [2014], lv denied 24 NY3d
1086 [2014]; People v Siler, 288 AD2d 625, 626-627 [2001], lv
denied 97 NY2d 709 [2002]). Further, according deference to the
jury's credibility determinations and viewing the evidence in a
neutral light, we find that the convictions were not against the
weight of the evidence (see People v Casseus, 120 AD3d at 829;
see also People v Williams, 124 AD3d 920, 921 [2015]).

      We agree, however, with defendant's further claim that
County Court committed reversible error by denying his challenge
for cause to a juror who had personal and/or professional
relationships with two investigators involved in the case. A
challenge for cause must be granted if a juror "has a state of
mind that is likely to preclude him [or her] from rendering an
impartial verdict based upon the evidence adduced at the trial"
(CPL 270.20 [1] [b]; accord People v Harris, 19 NY3d 679, 685
                              -5-                105770

[2012]).

      As to the first witness – an investigator in the District
Attorney's office who later testified, albeit briefly, at trial –
the potential juror stated that he knew the witness "quite well"
and had previously worked for him in a small shop for two years.
The juror stated that neither he nor the witness still worked for
that business at the time of trial. Further, when asked whether
anything about his relationship with this witness would affect
his ability to be impartial, the juror responded, "[The witness]
has told me a lot of information about different things that go
on. I kind of have a strong feeling with [this witness] and I
believe things he says. I hope it will not interfere with my
judgment." The court did not inquire further about the juror's
relationship with the witness.

      The second witness was the lead investigator on defendant's
case. The potential juror stated that he had known the witness
for about seven years and also saw him frequently at a softball
league, where the juror and the investigator each had close
family members who played on the same team. When asked whether
the relationship would affect the juror's ability to be fair, the
juror answered that "he and I were talking the other day and he
said please make them aware that you know me and that I am the
lead investigator on th[e] case." The juror then stated that the
relationship would not affect his judgment.

      A juror whose relationship with a potential witness is so
close "that it is likely to preclude him [or her] from rendering
an impartial verdict" (CPL 270.20 [1] [c]) must be excused even
if the juror states that he or she can be impartial, because "the
risk of prejudice arising out of the close relationship . . .
[is] so great that recital of an oath of impartiality could not
convincingly dispel the taint" (People v Branch, 46 NY2d 645, 651
[1979]; see People v Wlasiuk, 90 AD3d 1405, 1412 [2011]). In
determining whether a relationship is so close as to require
disqualification, a court should consider factors "such as the
frequency, recency or currency of the contact, whether it was
direct contact, . . . the nature of the relationship as personal
and/or professional . . . [and] any facet of the relationship
likely to preclude the prospective juror from being impartial"
                              -6-                105770

(People v Greenfield, 112 AD3d 1226, 1228-1229 [2013], lv denied
23 NY3d 1037 [2014]; see People v Furey, 18 NY3d 284, 287-288
[2011]). As to the first witness, a former working relationship,
without more, will not necessarily give rise to implied bias
requiring disqualification (see People v Scott, 16 NY3d 589, 595
[2011]; People v Pickren, 284 AD2d 727, 727-728 [2001], lv denied
96 NY2d 923 [2001]). Here, however, the juror described the
relationship as more than merely professional; he stated that he
knew the witness well, had discussed many subjects with him, had
strong feelings about him and tended to believe him, and he
volunteered that he was concerned as to whether the relationship
would affect his judgment. The juror's longstanding social
relationship with the second witness was sufficiently close that
the witness was aware that the juror had been called to jury duty
on the case he had investigated, and sufficiently current that
the juror and witness had spoken only a few days before the
trial. Thus, this relationship, like that with the first
witness, "was far more than a 'nodding acquaintance'" (People v
Littebrant, 55 AD3d 1151, 1154 [2008], lv denied 12 NY3d 818
[2009], quoting People v Provenzano, 50 NY2d 420, 425 [1980]).
Failure to excuse the juror could have "create[d] the perception
that the accused might not receive a fair trial before an
impartial finder of fact" (People v Furey, 18 NY3d at 287; accord
People v Greenfield, 112 AD3d at 1230). Accordingly, based upon
these two relationships, defendant's challenge for cause should
have been granted. In light of this holding, defendant's
remaining contention regarding the potential juror is academic.

      Established precedent requires that we reach this
conclusion. It bears mention that, in doing so, we remain rather
painfully aware of the many difficulties that trial courts
encounter in the process of selecting juries, especially where,
as here, the trial is lengthy and involves many witnesses.
Nevertheless, because of the fundamental importance of the right
to trial by an impartial jury, "the trial court should lean
toward disqualifying a prospective juror of dubious impartiality,
rather than testing the bounds of discretion by permitting such a
juror to serve" (People v Branch, 46 NY2d at 651). By erring on
the side of disqualification, "[t]he worst the court will have
done in most cases is to have replaced one impartial juror with
another impartial juror" (People v Johnson, 94 NY2d 600, 616
                              -7-                  105770

[2000] [internal quotation marks and citation omitted]; see CPL
270.20 [1] [b]; [2]; People v Russell, 116 AD3d 1090, 1093
[2014]). Defendant used a peremptory challenge to excuse the
potential juror and later exhausted his peremptory challenges;
thus, the denial of his challenge for cause was reversible error
(see People v Petke, 125 AD3d 1103, ___, 2015 NY Slip Op 01489,
*2-*3 [2015]; People v Young, 119 AD3d 970, 972 [2014]).

     Peters, P.J., Rose and Lynch, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Schenectady County for a
new trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
