                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 29, 2016                   107539
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

THOMAS MONTFORD,
                    Appellant.
________________________________


Calendar Date:   November 17, 2016

Before:   Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

                             __________


     Paul J. Connolly, Delmar, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Tracey A.
Brunecz of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Schenectady
County (Murphy III, J.), rendered March 26, 2015, upon a verdict
convicting defendant of the crimes of criminal sale of a
controlled substance in the third degree and criminal possession
of a controlled substance in the third degree (two counts).

      In March 2014, a confidential informant (hereinafter CI)
made a controlled purchase of crack cocaine from defendant in the
City of Schenectady, Schenectady County. Law enforcement
officers stopped defendant after the transaction and found that
he was carrying a pouch containing a substance later shown to be
heroin and another substance alleged to be marihuana. Defendant
was charged with criminal sale of a controlled substance in the
third degree, two counts of criminal possession of a controlled
                              -2-                107539

substance in the third degree pertaining respectively to the
cocaine and the heroin, and unlawful possession of marihuana.
During the subsequent jury trial, defendant's motion to dismiss
the marihuana charge was granted. He was convicted of the
remaining charges and sentenced to concurrent prison terms of
nine years on the criminal sale of a controlled substance
conviction and the criminal possession conviction pertaining to
cocaine, and to a consecutive nine-year prison term on the
criminal possession conviction pertaining to heroin, followed by
two years of postrelease supervision on each conviction.
Defendant appeals.

      Defendant contends that his conviction for criminal
possession of a controlled substance in the third degree premised
upon the heroin found on his person was against the weight of the
evidence and was not supported by legally sufficient evidence, in
that the People failed to prove that he had the requisite intent
to sell. The legal sufficiency claim is unpreserved, as
defendant failed to raise this argument in his trial motion for
dismissal (see People v Thiel, 134 AD3d 1237, 1237-1238 [2015],
lv denied 27 NY3d 1156 [2016]; People v Junior, 119 AD3d 1228,
1229 [2014], lv denied 24 NY3d 1044 [2014]). However, as part of
this Court's weight of the evidence review, we necessarily
determine whether all of the elements of the charged crimes were
proven beyond a reasonable doubt (see People v Valverde, 122 AD3d
1074, 1075 [2014], lv denied 27 NY3d 970 [2016]).

      Taken together, the trial testimony of the CI and several
law enforcement officers established that the CI telephoned a man
she knew as "Black" – later identified as defendant – and made
arrangements to meet him to purchase drugs. The CI was searched
before the transaction and given audio transmission equipment and
buy money consisting of two $20 bills that the police had
photocopied. The CI then met defendant on the street and gave
him the buy money in exchange for a quantity of crack cocaine
that she described as "two little twenty pieces." Officers
monitored the encounter using surveillance cameras, direct
observation and the CI's transmission equipment, and followed
defendant afterward as he rode away on his bicycle. The CI gave
the cocaine to investigators and told them that defendant had
taken it out of a black case or pouch in which the CI had seen
                              -3-                107539

other drugs that she believed to be heroin. Defendant was
stopped and searched, and a small black pouch was found on his
person. Inside the pouch were 17 glassine envelopes containing a
substance later identified as heroin, as well as multiple
packages of a substance alleged to be marihuana. The packets of
heroin were packaged into two bundles with black rubber bands in
a manner that, according to the testimony of several detectives,
was consistent with the typical packaging of heroin for the
purpose of sale on the streets in Schenectady. Also found on
defendant's person were a cell phone registered to the number
that the CI had called, $209 in cash that included the two $20
bills that the police had photocopied, and a piece of paper
containing the name Black and the cell phone's telephone number.

      Against his counsel's advice, defendant took the stand and
testified that he received a phone call from a woman who asked
him to meet her, rode his bicycle to the meeting location and
engaged in "personal business" with the woman, after which he was
stopped and arrested. He also testified that people on the
streets knew him as Black. He now argues that his intent to sell
the heroin was not proven, as no sale of heroin took place and
the quantities of heroin and cash found on his person were too
small to support an inference that he intended to sell the heroin
rather than use it. However, it is possible to possess and
intend to sell narcotics without actually completing a sale (see
People v Mendoza, 300 AD2d 824, 824-825 [2002], lv denied 99 NY2d
617 [2003]). Here, the jury could infer defendant's intent to
sell the heroin from the police testimony that it was packaged in
a manner consistent with sale and from the other surrounding
circumstances, including defendant's "saleslike conduct" in
selling the cocaine (People v Sanchez, 86 NY2d 27, 35 [1995]).
Such conduct also included the fact that the heroin was in the
same pouch that contained the cocaine that defendant sold to the
CI, the CI's testimony that defendant had previously sold drugs
to her on other occasions, and defendant's possession of the
piece of paper containing his street name and telephone number,
which police testified was consistent with a "business card"
advertising his availability as a drug dealer (compare People v
McCoy, 59 AD3d 856, 857 [2009]). There was no evidence that
defendant personally used heroin or any other drug, and the
relatively small quantities of drugs and cash found in his
                              -4-                107539

possession were consistent with the fact that he was riding his
bicycle when he met the CI to carry out the cocaine transaction.
Viewing the evidence in a neutral light (see People v Cruz, 131
AD3d 724, 725 [2015], lv denied 26 NY3d 1087 [2015]), we cannot
say that the conviction is against the weight of the evidence
(see People v Banks, 264 AD2d 667, 667 [1999], lv denied 94 NY2d
819 [1999]).

      We agree with defendant, however, that his convictions must
be reversed because of the erroneous denial of his challenge for
cause to a juror. During voir dire, one of the jurors told
County Court that he knew several members of the District
Attorney's staff, including an investigator with whom the juror
and his wife had been friends for over 30 years, two other
individuals who had previously been named by the court as
employees of the District Attorney's office, and an Assistant
District Attorney in Schenectady County. The juror explained
that he had strong connections in law enforcement; he had worked
for a town police department in Schenectady County for almost 20
years, was a part-time patrol officer at the time of trial, had
also worked as a road deputy in Schenectady County and was "the
career fire chief" for a village in Schenectady County. Despite
his affiliations with law enforcement, he repeatedly confirmed
that he would be fair, would follow his oath, would not
communicate with police officers or Assistant District Attorneys
and had no concerns about "split obligations" arising from his
experience in law enforcement or being able to judge the police
work or the People's case fairly.

      Defense counsel challenged the juror for cause, noting that
the juror was an active member of law enforcement and that the
investigator that the juror had identified as a friend was
working on defendant's case and had already been present in the
courtroom during the trial. The prosecutor confirmed that the
investigator was working on the case and that he might appear in
the courtroom. County Court denied the challenge on the ground
that the juror had stated unequivocally that he would be fair and
impartial.

      There are circumstances in which a prospective juror's
assurances of impartiality are inadequate. A challenge for cause
                              -5-                107539

must be granted when the juror has a relationship with, as
pertinent here, counsel for the People that is so close "that it
is likely to preclude him [or her] from rendering an impartial
verdict" (CPL 270.20 [1] [c]). This is so because "the risk of
prejudice arising out of the close relationship . . . [is] so
great that recital of an oath of impartiality could not
convincingly dispel the taint" (People v Branch, 46 NY2d 645, 651
[1979]; accord People v Hamilton, 127 AD3d 1243, 1246 [2015], lvs
denied 25 NY3d 1160, 1164 [2015]; see People v Wlasiuk, 90 AD3d
1405, 1412 [2011]). Factors to be taken into account in
determining whether a relationship is sufficiently close to
require disqualification include "the frequency, recency or
currency of the contact, whether it was direct contact, and the
nature of the relationship as personal and/or professional"
(People v Greenfield, 112 AD3d 1226, 1228-1229 [2013], lv denied
23 NY3d 1037 [2014]).

      The juror's mere status as a law enforcement officer,
without more, would not necessarily have required his
disqualification, nor would any relationship with a member of the
District Attorney's staff that was "little more than a nodding
acquaintance" (People v Provenzano, 50 NY2d 420, 425 [1980]; see
People v Pickren, 284 AD2d 727, 727-728 [2001], lv denied 96 NY2d
923 [2001]; People v Butts, 140 AD2d 739, 741 [1988]). However,
the juror described the investigator as a "friend," and said that
their social relationship had endured for more than 30 years and
was sufficiently close to include the juror's wife. While the
juror did not specifically describe the recency or frequency of
his contacts with this investigator, nothing in his description
of their relationship suggested any recent lessening in the
strength of this longstanding connection. Further, the
investigator in question was working on defendant's case, had
already appeared in the courtroom by the time the juror was
questioned and, according to the prosecutor, might continue to be
present during the trial.

      "Nothing is more basic to the criminal process than the
right of an accused to a trial by an impartial jury" (People v
Branch, 46 NY2d at 652). This juror's long-established
relationship could have "create[d] the perception that the
accused might not receive a fair trial before an impartial finder
                              -6-                  107539

of fact" (People v Furey, 18 NY3d 284, 287 [2011]; accord People
v Hamilton, 127 AD3d at 1247). As defendant exhausted his
peremptory challenges before jury selection was complete, the
erroneous denial of his challenge for cause requires reversal and
a new trial (see People v Bedard, 132 AD3d 1070, 1071 [2015];
People v Smith, 52 AD3d 847, 847-848 [2008]; People v Clark, 125
AD2d 868, 869-870 [1986], lv denied 69 NY2d 878 [1987]; see also
People v Greenfield, 112 AD3d at 1229-1230). This determination
renders the remaining challenge to defendant's sentence academic.

     Peters, P.J., Devine, Mulvey and Aarons, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Schenectady County for a
new trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
