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

386
KA 08-01316
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HOWARD L. BRYANT, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered May 5, 2008. The judgment convicted
defendant, upon a jury verdict, of course of sexual conduct against a
child in the second degree, sexual abuse in the second degree and
sexual abuse in the third degree (three 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
upon a jury verdict of, inter alia, course of sexual conduct against a
child in the second degree (Penal Law § 130.80 [1] [b]). As defendant
contends and the People correctly concede, reversal is required
because County Court erred in denying defendant’s challenge for cause
to a prospective juror. “We note at the outset that defendant[, after
the challenge at issue was determined,] exhausted his peremptory
challenges, and thus his contention is properly before us” (People v
Payne, 49 AD3d 1154, 1154; see CPL 270.20 [2]; People v Nicholas, 98
NY2d 749, 752).

     After responding to the court’s general questions appropriately,
a prospective juror in the first pass stated that there was a
possibility that she would presume that defendant was guilty if he
chose not to testify. There was no further questioning of that
prospective juror. Consequently, the statements of that prospective
juror “cast serious doubt on [her] ability to render a fair verdict
under the proper legal standards. The trial court therefore was
required to elicit some unequivocal assurance from [that] prospective
juror[] that [she was] able to reach a verdict based entirely upon the
court’s instructions on the law. The jury panel’s earlier collective
acknowledgment that they would follow the court’s instructions was
insufficient to constitute such an unequivocal declaration” (People v
                                 -2-                           386
                                                         KA 08-01316

Bludson, 97 NY2d 644, 646). We therefore reverse the judgment, and we
grant a new trial on the indictment.

     Defendant failed to preserve for our review his further
contention that he was deprived of his constitutional right to
confront witnesses against him by the court’s limitation of his cross-
examination of the victim. “Although . . . defendant [took exception
to the court’s ruling], he did not specify the [constitutional] ground
now raised on appeal. Therefore, the issue of whether he was deprived
of his right of confrontation is unpreserved for appellate review”
(People v Perez, 9 AD3d 376, 377, lv denied 3 NY3d 710; see People v
Rivera, 33 AD3d 450, 450-451, lv denied 7 NY3d 928). In any event,
that contention is without merit. “ ‘[C]urtailment [of
cross-examination] will be judged improper when it keeps from the jury
relevant and important facts bearing on the trustworthiness of crucial
testimony’ ” (People v Smith, 12 AD3d 1106, 1106, lv denied 4 NY3d
767; see People v Gross, 71 AD3d 1526, 1527, lv denied 15 NY3d 774).
Here, however, the court’s final ruling permitted defendant to bring
out significant details with respect to the victim’s prior bad acts,
and thus it did not constitute an improvident exercise of the court’s
discretion.

     Defendant’s remaining contentions are academic in light of our
determination.




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
