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

324
KA 10-01374
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY D. STRASSNER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY 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
(Daniel J. Doyle, J.), rendered May 10, 2010. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
E felony.

     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 trial, of driving while intoxicated (Vehicle and Traffic
Law § 1192 [3]). Defendant contends that Supreme Court erred in
denying his challenges for cause to three prospective jurors whose
statements during voir dire cast doubt on their 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). During voir dire, the statements of three
prospective jurors with respect to the credibility of the testimony of
police officers or bias in favor of the police cast serious doubt on
their ability to render an impartial verdict (see Nicholas, 98 NY2d at
751-752; People v Lewis, 71 AD3d 1582, 1583-1584; People v Givans, 45
AD3d 1460, 1461; People v Mateo, 21 AD3d 1392, 1392-1393), and those
prospective jurors failed to provide “unequivocal assurance that they
[could] set aside any bias and render an impartial verdict based on
                                 -2-                           324
                                                         KA 10-01374

the evidence” (People v Johnson, 94 NY2d 600, 614). Contrary to the
court’s conclusion, we conclude that the nodding by these three
prospective jurors as part of a group of prospective jurors who were
“all nodding affirmatively in regard to the statement [of another
prospective juror]” was “insufficient to constitute such an
unequivocal declaration” (People v Bludson, 97 NY2d 644, 646; see
Lewis, 71 AD3d at 1583). Inasmuch as defendant had exhausted all of
his peremptory challenges before the completion of jury selection, the
denial of defendant’s challenges for cause constitutes reversible
error (see CPL 270.20 [2]; People v Harris, 23 AD3d 1038, 1038).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
