SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

116 

KA 14-00578 

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ULYSSES M. BETANCES, JR., DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARTER SECREST & EMERY

LLP (MICHAEL J. ROONEY OF COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Francis A. Affronti, J.), rendered January 21, 2014. The judgment

convicted defendant, upon a jury verdict, of aggravated driving while

intoxicated. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law and a new trial is granted on counts

one and two of the indictment. 

Memorandum: On appeal from a judgment convicting him upon a jury

verdict of aggravated driving while intoxicated (Vehicle and Traffic

Law § 1192 [2-a] [b]), defendant contends that Supreme Court abused

its discretion in denying his challenge for cause to prospective juror

No. 13. We agree. We therefore reverse the judgment and grant a new

trial on counts one and two of the indictment. 

“It is well settled that ‘a prospective juror whose statements

raise a serious doubt regarding the ability to be impartial must be

excused unless the [prospective] juror states unequivocally on the

record that he or she can be fair and impartial’ ” (People v Odum, 67

AD3d 1465, 1465, lv denied 14 NY3d 804, reconsideration denied 15 NY3d

755, cert denied 562 US 931, quoting People v Chambers, 97 NY2d 417,

419). Although CPL 270.20 (1) (b) “does not require any particular

expurgatory oath or ‘talismanic’ words . . . , [prospective] jurors

must clearly express that any prior experiences or opinions that

reveal the potential for bias will not prevent them from reaching an

impartial verdict” (People v Arnold, 96 NY2d 358, 362; see People v

Mitchum, 130 AD3d 1466, 1467). “Prospective jurors who make

statements that cast serious doubt on their ability to render an

impartial verdict, and who have given less-than-unequivocal assurances

of impartiality, must be excused” (Arnold, 96 NY2d at 363; see People

v Harris, 19 NY3d 679, 685). 
-2- 116 

KA 14-00578 

Here, in response to the prosecutor’s question regarding whether

any member of the panel thought that he or she could not be fair and

impartial due to the allegations of driving while intoxicated,

prospective juror No. 13 indicated that, due to situations in her

past, she did not see any reason why anyone would need to drink and

drive, and she could not be fair and impartial. Upon follow-up

questioning by the court, she assured the court that she could set

those feelings aside. Later, however, in response to defense

counsel’s questions, prospective juror No. 13 indicated that she had

wondered what defendant did wrong when she first walked into the

courtroom, and that “obviously” she felt that “he must have done

something wrong or he wouldn’t have” been in court. The court asked

follow-up questions, but cut off the prospective juror before she

could reply to one such question, and the court’s final substantive

question failed to establish the prospective juror’s state of mind. 

Consequently, the court abused its discretion in denying defendant’s

challenge for cause to prospective juror No. 13. Defendant exhausted

all of his peremptory challenges before the completion of jury

selection and thus the denial of his challenge for cause is preserved

for our review (see CPL 270.20 [2]; Harris, 19 NY3d at 685), and

constitutes reversible error (see People v Harris, 23 AD3d 1038, 1038;

People v Brzezicki, 249 AD2d 917, 918-919; see also People v Casillas,

134 AD3d 1394, 1396). 

Entered: February 3, 2017 Frances E. Cafarell

Clerk of the Court