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PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED.

The Fourth Department, reversing defendant’s conviction, determined the for cause challenge to a juror whose son is married to the district attorneys daughter should have been granted. The court further determined that a defense witness’s testimony that the victim said she didn’t “think [defendant] did this” should have been allowed:

… [T]he prospective juror should have been excused from service for cause on the ground that he bears a “relationship to [the District Attorney] of such nature that it [was] likely to preclude him from rendering an impartial verdict” … . …

… [T]he court erred in excluding testimony from a defense witness that the victim had said that she did not “think [defendant] did this,” meaning that defendant did not commit the alleged crime. We conclude that, on cross-examination of the victim, defense counsel had laid an adequate foundation for the admission of that prior inconsistent statement by eliciting testimony that the victim had never discussed the matter with the defense witness and had never told the defense witness that the alleged occurrence “between [her] and [defendant] might not have happened” … . People v Collins, 2016 NY Slip Op 08645, 4th Dept 12-23-16

 

CRIMINAL LAW (PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/JURORS (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/EVIDENCE  (CRIMINAL LAW, PROSPECTIVE JUROR WHOSE SON IS MARRIED TO THE DISTRICT ATTORNEY SHOULD HAVE BEEN EXCUSED FOR CAUSE, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)/HEARSAY (CRIMINAL LAW, PRIOR INCONSISTENT STATEMENT BY VICTIM SHOULD HAVE BEEN ADMITTED)

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ALTHOUGH THE ERROR WAS DEEMED HARMLESS, TO ALLOW DEFENDANT TO DETERMINE WHETHER... FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS...