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

1134
KA 13-01588
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELI E. CASILLAS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered August 1, 2013. The judgment convicted
defendant, upon a jury verdict, of strangulation 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, that part of the omnibus motion
seeking to suppress the statements made by defendant and the physical
evidence seized from his apartment is granted, and a new trial is
granted.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of the crimes of strangulation in the second
degree (Penal Law § 121.12) and assault in the second degree (§ 120.05
[2]). Contrary to defendant’s contention, the conviction is supported
by legally sufficient evidence (see People v Bleakley, 69 NY2d 490,
495) and, 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 Bleakley, 69 NY2d at 495).

     We agree with defendant, however, that Supreme Court erred in
denying that part of his omnibus motion seeking to suppress statements
made by defendant and tangible property seized by the police following
their warrantless entry into his apartment (hereafter, motion). As a
preliminary matter, we note that, as the People correctly concede, the
court failed to place its findings of fact and conclusions of law on
the record with respect to defendant’s motion as required by CPL
710.60 (6). “ ‘The failure to do so is not fatal, however, where, as
here, there has been a full and fair hearing. In such instances, this
[C]ourt may make its own findings of fact and conclusions of law’ ”
(People v McNeill, 107 AD3d 1430, 1431, lv denied 22 NY3d 957). We
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                                                         KA 13-01588

reject the People’s contention that the “emergency exception”
justified the warrantless entry into defendant’s apartment. To the
contrary, based on our review of the record, we conclude that “the
evidence at the suppression hearing [did] not establish that the
police ‘had reasonable grounds to believe that there [was] an
emergency at hand and an immediate need for their assistance for the
protection of life or property’ ” (People v Liggins, 64 AD3d 1213,
1215, appeal dismissed 16 NY3d 748). Indeed, the People did not
present any evidence that the police observed anything unusual once
they arrived at defendant’s apartment. Although the record indicates
that defendant and the victim may have been previously involved in
domestic disputes, both police officers testified at the suppression
hearing that they did not have direct, personal knowledge of any
previous domestic violence or any indication that defendant and the
victim were engaged in a domestic dispute at the time they arrived at
the apartment. The police officers testified only that they knew that
defendant was inside the apartment but would not answer the door. In
our view, such testimony is insufficient to support a determination
that the “emergency exception” applied to justify the warrantless
entry. We therefore grant that part of the motion seeking to suppress
the statements made by defendant and the physical evidence seized from
his apartment, and we grant a new trial.

     In view of our resolution of the suppression issue, there is no
need to address defendant’s remaining contentions. We note, however,
that we agree with defendant that the court erred in denying his
challenges for cause to five prospective jurors during voir dire,
inasmuch as the court failed to obtain unequivocal assurances of
impartiality from each juror. “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 Mitchum, 130 AD3d 1466, 1467; see People v Strassner, 126
AD3d 1395, 1396). 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” (People v Arnold, 96 NY2d 358, 362). Here, the record
establishes that five out of the six prospective jurors clearly
expressed concerns that not hearing from defendant or someone on
behalf of defendant would affect, inter alia, their ability to be fair
and impartial. In response, the court instructed the jury panel that
defendant has no responsibility to put on any proof, that he may or
may not call witnesses, that he may or may not take the witness stand,
and that it is the prosecution’s burden to prove the elements of the
crimes of which defendant is accused. The court then asked the jury
panel whether anyone had “a problem sitting as a fair and impartial
juror in this case?” The five prospective jurors at issue remained
silent.

     In our view, the statements of the five prospective jurors cast
serious doubt on their ability to render an impartial verdict (see
People v Bludson, 97 NY2d 644, 646; People v Thorn, 269 AD2d 756,
757). The court erred in not obtaining thereafter an “unequivocal
                                 -3-                          1134
                                                         KA 13-01588

assurance . . . from each of those potential jurors” to the effect
that he or she could render an impartial verdict (People v Holmes, 302
AD2d 936, 936 [internal quotation marks omitted]; see People v
Nicholas, 98 NY2d 749, 751-752). Furthermore, “we can infer nothing
from the [collective] silence of the challenged jurors” (Holmes, 302
AD2d at 936). “Inasmuch as defendant had exhausted all of his
peremptory challenges before the completion of jury selection, the
denial of defendant’s challenges for cause” would likewise constitute
reversible error (Strassner, 126 AD3d at 1396).




Entered:   December 23, 2015                   Frances E. Cafarell
                                               Clerk of the Court
