PROSPECTIVE JUROR WHO SAID HE OR SHE WOULD HOLD THE REFUSAL TO TESTIFY AGAINST THE DEFENDANT SHOULD HAVE BEEN EXCUSED FOR CAUSE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined a prospective juror’s indication he or she would hold defendant’s refusal to testify against the defendant required excusal “for cause:”

Here, the prospective juror gave “some indication of bias” … by stating that he “[a]bsolutely” might hold it against defendant if defendant chose not to testify … .

Contrary to the court’s determination, the prospective juror did not “give unequivocal assurance that [he could] set aside any bias and render an impartial verdict based on the evidence” … . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or ‘talismanic’ words . . . , [a prospective] juror[ ] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [the prospective juror] from reaching an impartial verdict” … . “If there is any doubt about a prospective juror’s impartiality, [the] trial court[ ] should err on the side of excusing the juror, since at worst the court will have ‘replaced one impartial juror with another’ ” … . We conclude that the prospective juror’s act of nodding his head affirmatively after the court gave an instruction and posed a question to the entire jury panel was “insufficient to constitute such an unequivocal declaration” … . People v Cheese, 2024 NY Slip Op 05712, Fourth Dept 11-15-24

Practice Point: Here the prospective juror indicated bias requiring excusal for cause by indicating he or she would hold the refusal to testify against the defendant.