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

1007
KA 10-00856
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LUIS ROSARIO-BORIA, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered January 13, 2010. The judgment convicted
defendant, upon a jury verdict, of kidnapping in the second degree and
intimidating a victim or witness in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, count four of the superseding
indictment is dismissed, and a new trial is granted on count three of
that indictment.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of kidnapping in the second degree (Penal Law § 135.20) and
intimidating a victim or witness in the third degree (§ 215.15 [1]),
defendant contends that County Court abused its discretion in refusing
to permit him to exercise a peremptory challenge against a prospective
juror. We agree, and we therefore reverse the judgment.

     Initially, we reject the contention of the People that defendant
failed to preserve this issue for our review. Defendant specifically
sought to exercise a peremptory challenge against the prospective
juror in question, and the court refused to permit him to do so.
Consequently, “the record establishes that ‘the trial judge was made
aware, before he ruled on the issue, that the defense wanted him to
rule otherwise, [and thus] preservation was adequate’ ” (People v
Torres [appeal No. 1], 97 AD3d 1125, 1126, affd 20 NY3d 890, quoting
People v Caban, 14 NY3d 369, 373; see CPL 470.05 [2]; People v
Hawkins, 11 NY3d 484, 493).

     With respect to the merits, the record establishes that the court
directed the attorneys to exercise their challenges in strict order
according to the position in which the prospective juror was seated in
the jury box for questioning, and the court indicated that it would
                                 -2-                          1007
                                                         KA 10-00856

not permit the attorneys to return to a prospective juror after the
process had moved on to the next prospective juror. After several
prospective jurors had been excused for cause, the court directed the
attorneys to exercise their peremptory challenges to the first group
of prospective jurors in the panel. The prosecutor exercised several
challenges, followed by defense counsel. As the court began to
indicate the number of challenges that remained for each side, defense
counsel immediately asked if he could exercise a peremptory challenge
to the prospective juror in question on appeal. When the court said
no, defense counsel indicated that he had “crossed [the prospective
juror’s name] out by mistake.” The court reiterated that it would not
permit the challenge, indicating that it had warned the attorneys
about adhering to the court’s procedures.

     “Under these circumstances, ‘we can detect no discernable
interference or undue delay caused by [defense counsel’s] momentary
oversight . . . that would justify [the court’s] hasty refusal to
entertain [his] challenge,’ ” and we thus conclude that the court’s
refusal to permit the challenge was an abuse of discretion (People v
McGrew, 103 AD3d 1170, 1173; see People v Jabot, 93 AD3d 1079, 1081-
1082). Inasmuch as “the right to exercise a peremptory challenge
against a specific prospective juror is a ‘substantial right’ . . . ,
reversal is mandated” (Jabot, 93 AD3d at 1081-1082; see McGrew, 103
AD3d at 1173; cf. People v Williams, 107 AD3d 1391, 1393).

     We further agree with defendant that the conviction under count
four, i.e., intimidating a victim or witness in the third degree, is
not supported by legally sufficient evidence. We therefore dismiss
that count of the superseding indictment and grant a new trial only
with respect to count three, charging kidnapping in the second degree.
The People presented evidence at trial establishing that defendant
approached the witness in a grocery store and said, “I’m not that
stupid as you may think.” There was no evidence tending to support
the inference that defendant’s statement was a threat intended to
prevent the witness from communicating with the police, the courts or
the grand jury, and the evidence therefore is legally insufficient to
support the conviction with respect to that count (see Penal Law §
215.15 [1]; see generally People v Oberlander, 60 AD3d 1288, 1289-
1291).

     Contrary to defendant’s further contention, the court properly
denied his request for a jury charge on the justification defense in
Penal Law § 35.05, and instead charged the jury on the affirmative
defense of duress. “Here, . . . the only defense raised was that
defendant lacked the requisite intent to commit [kidnapping] and was
acting out of fear of the [kidnappers], who had threatened him with a
gun. The only theory of the defense [was] duress, and ‘there is
simply no basis for justifying defendant’s conduct by any other
standard’ ” (People v Crumpler, 242 AD2d 956, 958, lv denied 91 NY2d
871, quoting People v Magliato, 68 NY2d 24, 31).

     In light of our determination, we do not address defendant’s
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                                            KA 10-00856

remaining contentions.




Entered:   October 4, 2013         Frances E. Cafarell
                                   Clerk of the Court
