         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
359
CA 10-00205
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF THE STATE OF NEW YORK,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CHARLES KALCHTHALER, RESPONDENT-APPELLANT.


EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, SYRACUSE
(MAUREEN T. KISSANE OF COUNSEL), FOR RESPONDENT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MICHAEL CONNOLLY OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(William D. Walsh, A.J.), entered November 17, 2009 in a proceeding
pursuant to Mental Hygiene Law article 10. The order, among other
things, committed respondent to a secure treatment facility.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and a new trial is
granted.

     Memorandum: On appeal from an order determining that he is a
dangerous sex offender requiring confinement pursuant to Mental
Hygiene Law article 10 and committing him to a secure treatment
facility, respondent contends that Supreme Court erred in denying his
challenge for cause to a prospective juror. We agree. We note at the
outset that challenges to the jury impanelment procedures in Mental
Hygiene Law article 10 proceedings implicate a respondent’s
fundamental right to a jury trial (see Matter of State of New York v
Muench, 68 AD3d 1677; see generally § 10.07 [b]), and the procedure
set forth in CPL 270.20 governing challenges for cause in a criminal
trial applies here (see § 10.07 [b]). Pursuant to that procedure,
when a prospective juror makes statements that cast serious doubt on
his or her ability to render an impartial verdict, that juror must be
excused for cause unless the juror provides an “unequivocal assurance
that [he or she] can set aside any bias and render an impartial
verdict based on the evidence” (People v Johnson, 94 NY2d 600, 614).
We agree with respondent that the prospective juror in question did
not provide such an unequivocal assurance and thus that respondent
should not have had to use a peremptory challenge with respect to that
prospective juror (see id. at 614-615). Inasmuch as respondent
exhausted all of his peremptory challenges before the completion of
jury selection, reversal is required (see CPL 270.20 [2]; cf. People v
                                 -2-                          359
                                                        CA 10-00205

Lynch, 95 NY2d 243, 248). In light of our determination, we do not
address respondent’s remaining contentions.




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
