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

1444
KA 13-00556
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERROL FOWLER-GRAHAM, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY 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 Erie County Court (Kenneth F. Case,
J.), rendered November 18, 2011. The judgment convicted defendant,
upon a jury verdict, of rape in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of rape in the first degree (Penal Law § 130.35 [1]),
defendant contends that County Court erred in denying his challenge
for cause to a prospective juror. We reject that contention.
Pursuant to CPL 270.20 (1) (b), a challenge for cause to a prospective
juror may be made “on the ground that . . . he [or she] 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.” Only
statements that “cast serious doubt on [a prospective juror’s] ability
to render an impartial verdict” trigger a court’s obligation to obtain
an unequivocal assurance from the prospective juror that he or she can
render an impartial verdict (People v Arnold, 96 NY2d 358, 363; see
People v Harris, 19 NY3d 679, 685). Here, the prospective juror
stated that her daughter had been the victim of a sexual assault, but
nothing that she said raised a serious doubt as to her ability to
render an impartial verdict (see People v Campanella, 100 AD3d 1420,
1421, lv denied 20 NY3d 1060; People v Turner, 6 AD3d 1190, 1190, lv
denied 3 NY3d 649). In any event, in responding to follow-up
questions from the court and defense counsel, the prospective juror
gave an “unequivocal assurance that [she could] set aside any bias and
render an impartial verdict based on the evidence” (People v Johnson,
94 NY2d 600, 614; see People v Chambers, 97 NY2d 417, 419).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
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                                                         KA 13-00556

reject defendant’s contention that the verdict is against the weight
of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Finally, the sentence is not unduly harsh or severe.




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