People v Fowler-Graham

People v Fowler-graham 2015 NY Slip Op 00166 Decided on January 2, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, AND WHALEN, JJ.
1444 KA 13-00556

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

ERROL FOWLER-GRAHAM, DEFENDANT-APPELLANT.

Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered November 18, 2011. The judgment convicted defendant, upon a jury verdict, of rape in the first degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35 [1]), defendant contends that County Court erred in denying his challenge for cause to a prospective juror. We reject that contention. Pursuant to CPL 270.20 (1) (b), a challenge for cause to a prospective juror may be made "on the ground that . . . he [or she] has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial." Only statements that "cast serious doubt on [a prospective juror's] ability to render an impartial verdict" trigger a court's obligation to obtain an unequivocal assurance from the prospective juror that he or she can render an impartial verdict (People v Arnold, 96 NY2d 358, 363; see People v Harris, 19 NY3d 679, 685). Here, the prospective juror stated that her daughter had been the victim of a sexual assault, but nothing that she said raised a serious doubt as to her ability to render an impartial verdict (see People v Campanella, 100 AD3d 1420, 1421, lv denied 20 NY3d 1060; People v Turner, 6 AD3d 1190, 1190, lv denied 3 NY3d 649). In any event, in responding to follow-up questions from the court and defense counsel, the prospective juror gave an "unequivocal assurance that [she could] set aside any bias and render an impartial verdict based on the evidence" (People v Johnson, 94 NY2d 600, 614; see People v Chambers, 97 NY2d 417, 419).

Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Finally, the sentence is not unduly harsh or severe.

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court