SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

773 

KA 10-00700 

PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ANTHONY D. MCCLARY, DEFENDANT-APPELLANT.

 

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (FRANK A. SEMINERIO

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Jefferson County Court (Kim H.

Martusewicz, J.), rendered January 11, 2010. The judgment convicted

defendant, upon a jury verdict, of criminal possession of a controlled

substance in the third degree and criminal sale of a controlled

substance in the third degree. 

It is hereby ORDERED that the judgment so appealed from is 

unanimously reversed on the law and as a matter of discretion in the

interest of justice and a new trial is granted. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of criminal possession of a controlled substance

in the third degree (Penal Law § 220.16 [1]) and criminal sale of a

controlled substance in the third degree (§ 220.39 [1]). We agree

with defendant that reversal is required on the ground that County

Court improperly removed a sworn juror who was not shown to be grossly

unqualified to serve in the case (CPL 270.35 [1]; see generally People

v Buford, 69 NY2d 290, 297-298). Here, a prosecution witness

indicated that he had met the juror in question on two prior

occasions, i.e., at a party at someone’s home and at the apartment of

the witness, when the juror was performing maintenance work there. 

The court questioned the juror with respect to the circumstances of

those alleged meetings, but the juror could not recall having had any

prior connection with the witness. The court nonetheless dismissed

the juror, over defendant’s objection, on the ground that the juror

“may or may not know that [the juror] ha[s] had some kind of contact

with one of the witnesses, and so [the juror was] not put in any kind

of spot and we are not put in any kind of spot, we’ll just excuse

[him].” “[W]hile a trial court should lean toward disqualifying a

prospective juror of dubious impartiality when [such prospective]

juror is challenged for cause under CPL 270.20 (1) (b) . . ., the

standard for disqualifying a sworn juror over defendant’s objection
-2- 773 

KA 10-00700 

(i.e., grossly unqualified) is satisfied only when it becomes obvious

that a particular juror possesses a state of mind which would prevent

the rendering of an impartial verdict” (Buford, 69 NY2d at 298

[internal quotation marks omitted]). We are unable to conclude on

this record that there was a basis for the court to have been

“convinced” that the juror was grossly unqualified to serve in the

case (id. at 299; see CPL 270.35 [1]; People v Telehany, 302 AD2d 927,

928). Inasmuch as the erroneous dismissal of a sworn juror is not

subject to harmless error analysis, reversal is required (see People v

Anderson, 70 NY2d 729, 730-731).

Defendant further contends that reversal is also warranted based

upon specified instances of prosecutorial misconduct. We agree with

defendant that the cumulative effect of those instances requires

reversal. As defendant correctly notes, the prosecutor improperly

“elicited testimony from [detectives] who vouched for the credibility

of the confidential informant by testifying that the confidential

informant had provided reliable information to the police in the past”

(People v Fredrick, 53 AD3d 1088, 1088; see People v Slaughter, 189

AD2d 157, 160, lv denied 81 NY2d 1080). He also improperly elicited

testimony regarding defendant’s postarrest silence during the People’s

case-in-chief, in violation of defendant’s right against selfincrimination, an error that he compounded by explicitly referencing

defendant’s postarrest silence during summation (see generally People

v Basora, 75 NY2d 992, 993-994). Finally, the prosecutor further

engaged in misconduct by “forcing defendant on cross-examination to

characterize [the] prosecution witnesses as liars” (People v Holden,

244 AD2d 961, 961, lv denied 91 NY2d 926; see People v Edwards, 167

AD2d 864, lv denied 77 NY2d 877). Although defendant failed to

preserve his contention for our review (see CPL 470.05 [2]), we

exercise our power to review it as a matter of discretion in the

interest of justice (see CPL 470.15 [6] [a]; Fredrick, 53 AD3d at

1088). In light of our determination that reversal is required on two

separate grounds, we need not address defendant’s remaining

contentions.

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court