Judge's Failure to Exclude Juror Who Knew Witnesses Ruled as Error

Judge's Failure to Exclude Juror Who Knew Witnesses Ruled as Error
The New York Law Journal by Joel Stashenko  -  December 16, 2011

ALBANY, NY - A judge erred by  not granting a for-cause challenge to seating as a juror the local police chief's wife, who acknowledged knowing eight of 14 witnesses the prosecution planned to call, the state Court of Appeals decided yesterday. The Court unanimously ruled that the potential juror's assurances to Oswego County Court Judge Walter W. Hafner Jr. were insufficient to guarantee her impartiality in the trial of defendant Scott C. Furey. Mr. Furey was convicted in 2009 of multiple counts in connection with the kidnapping of his former girlfriend. He was sentenced to 51/2 years in prison and five years of post-release supervision.  Judge Hafner denied a for-cause challenge to seating as a juror the wife of Oswego City Police Captain James Comerford. That forced the defense to use a peremptory challenge to remove her from the panel.  The Court in People v. Furey, 234, said the trial judge's decision ran counter to the so-called "implied bias" standard of challenging jurors for cause spelled out in Criminal Procedure Law 270.20[1][c].  That statute provides that a juror's pre-existing relationship with a potential witness is a possible basis for a for-cause challenge if it is "likely to preclude [the prospective juror] from rendering an impartial verdict."  CPL 270.20[1][c] requires automatic exclusion from jury service "regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial," Judge Victoria A. Gruff wrote for the panel, citing the Court's decision in People v. Branch, 46 NY2d 645 (1979).  Kathleen Comerford's familiarity with eight prosecution witnesses—seven police officers and an assistant district attorney—"satisfied the implied bias standard" under CPL 270.20[1][c], the Court said.  "Although Mrs. Comerford offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial," Judge Graffeo wrote. "It was therefore an abuse of discretion as a matter of law to deny defendant's challenge for cause."  The Court noted that a juror's familiarity with witnesses does not always justify a challenge for cause. It cited cases, including People v. Colon, 71 NY2d 410 (1988), in which prospective jurors who have relatives in law enforcement, but none testifying in the pending case, have not been subject to a challenge for cause.  "The frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary," the Court said.  Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick, Susan Phillips Read, Robert S. Smith, Eugene F. Pigott Jr. and Theodore T. Jones Jr. concurred.  Mr. Furey's attorney used a peremptory challenge to exclude Ms. Comerford and ultimately exhausted his allotment of 15, the Court noted. Mr. Furey was convicted of second-degree kidnapping, second-degree burglary and other charges in connection with the May 2008 abduction of his ex-girlfriend that started in the city of Oswego and ended in the Rochester suburb of Webster.  Authorities say Mr. Furey also punched the woman and threatened to kill her.  According to court papers, Captain Comerford dispatched the two Oswego officers who retrieved Mr. Furey from Webster.  The Court's ruling reversed a decision by the Appellate Division, Fourth Department, in People v. Furey, 77 AD3d 1357 (2010), which had concluded that "it cannot be said" that Ms. Comerford was "inherently biased" because she knew a number of the police witnesses.  Gary Muldoon of Muldoon & Getz in Rochester represented Mr. Furey. Mr. Muldoon said he is "very, very pleased" with the ruling.  "The decision reiterates what a judge must do where implied bias is shown," he said. "An expurgatory oath is not enough. The prospective juror must be discharged."  Assistant Oswego County District Attorney Michael G. Cianfarano represented the prosecution. Oswego County District Attorney Donald H. Dodd did not return a call yesterday seeking comment.  Mr. Furey, 41, is in the maximum-security Coxsackie Correctional Facility. He is first eligible for release on parole in January 2014 under his current sentence.   Joel Stashenko can be contacted at jstashenko@alm.com.