State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 2, 2015 105770 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v

MEMORANDUM AND ORDER

JEREMIAH HAMILTON, Also Known 

as KELLAN BROWN, Also Known 

as HAVOC,

Appellant.

________________________________

Calendar Date: February 11, 2015

Before: Peters, P.J., Garry, Rose and Lynch, JJ.

__________

Cynthia Feathers, Glens Falls, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter

Willis of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the County Court of Schenectady

County (Drago, J.), rendered October 24, 2012, upon a verdict

convicting defendant of the crimes of murder in the second

degree, attempted murder in the second degree, criminal

possession of a weapon in the second degree (two counts) and

reckless endangerment in the first degree.

In September 2008, the victim was shot and killed in the

City of Schenectady, Schenectady County while standing close to

an individual with whom defendant had quarreled earlier that day. 

Defendant was indicted on charges of murder in the second degree,

attempted murder in the second degree, criminal possession of a
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weapon in the second degree (two counts) and reckless

endangerment in the first degree. Following a jury trial, he was

convicted as charged and sentenced to an aggregate prison term of

40 years to life, plus five years of postrelease supervision. 

Defendant appeals.

Defendant contends that his convictions for murder in the

second degree and attempted murder in the second degree are not

supported by legally sufficient evidence and are against the

weight of the evidence. To convict defendant of murder in the

second degree, the People were required to prove that "[w]ith

intent to cause the death of another person, he cause[d] the

death of such person or of a third person" (Penal Law § 125.25

[1]). The conviction for attempted murder in the second degree

required proof that "with the intent to cause the death of

another person, [defendant] engage[d] in conduct which tend[ed]

to effect commission of that crime" (People v Fernandez, 88 NY2d

777, 783 [1996]; see Penal Law §§ 110.00, 125.25 [1]).

Taken together, the trial testimony of multiple witnesses

established that a dispute erupted between defendant and Victor

Toomer while they were playing dice in the street with several

other men. Defendant allegedly exclaimed, "You cheated me" and

punched Toomer. Defendant was chased down the street by Toomer

and the other men and escaped, warning that he would be back. 

Defendant went to a house in an adjoining neighborhood, where he

asked for a gun, stating that "somebody around the corner was

trying to play him" and that he was "going to go over there and

take care of it." An alleged leader of the Bloods gang directed

another man to give defendant the gun and directed the victim to

accompany defendant when he returned to the street where Toomer

was, to "make sure he was all right." When they returned to the

scene of the dice game, the victim – who had a friendly

relationship with Toomer – crossed the street and began speaking

with him, trying to mediate the dispute. Meanwhile, defendant

remained on the other side of the street and, according to

Toomer's testimony, "[took] cover behind [a] car." Toomer and

the victim stood close together as they were speaking, and Toomer

asked the victim what he was there to do. The victim responded,

"I didn't know it was you," and said that he wanted to settle the

disagreement. Toomer then saw defendant "duck a little bit under
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the car" and then "come over the car and start[] shooting." 

Witnesses heard several gunshots. One witness saw defendant

"crouch down" behind the car just before the gunshots rang out,

and another saw defendant fire the gun. The victim was struck in

the head by a bullet and fell to the ground. Toomer removed a

gun from the victim's waistband and fired at defendant, who fled. 

Defendant then allegedly returned to the house where he had

obtained the gun and returned it to the owner after wiping it

down. When asked about the victim's whereabouts, defendant

allegedly claimed that he "ran the other way."

A detective who investigated the crime scene found two .25

caliber shell casings near a car across the street from the

victim's body, as well as several .22 caliber casings closer to

the body. He opined that the person who fired the .25 caliber

weapon was standing near the car and across the street from the

victim. Two days later, police stopped the man who had given

defendant the gun for an unrelated infraction and found that he

was carrying a .25 caliber handgun. Subsequent testing revealed

that a bullet test-fired from this gun was consistent with the

projectile found in the victim's head. 

Defendant fled to Pennsylvania, where he was subsequently

arrested. He told police that he was on the street where the

victim was shot, but claimed that he was smoking marihuana with a

friend and fled when he heard the gunshots. A woman who was

dating defendant at the time of the shooting testified that he

told her that he got into a dispute with another "kid" while

playing dice, and that after defendant returned to the scene, the

victim "got in the middle trying to play peacemaker." Defendant

said that the other "kid" fired a gun at defendant, and he fired

back and ran away. A witness who was incarcerated with defendant

testified that he asked defendant whether he had shot the victim

and defendant responded, "[C]ome on, like he shouldn't have been

trying to play peacemaker in the process of me letting it go." 

The witness said that defendant made a shooting motion with his

hand while he said "letting it go," and that defendant added that

he "didn't mean for it to go down the way it [did]."

Defendant argues that the evidence establishes that his

target was Toomer, not the victim, and that the People neither
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proved that he intended to kill the victim, nor that he intended

to kill – rather than frighten or injure – Toomer. However,

under the doctrine of transferred intent, a defendant who intends

to cause the death of one individual but instead causes the death

of another, unintended victim bears the same criminal liability

as that which would have resulted if the intended target had been

killed (see People v Fernandez, 88 NY2d at 781-782; People v

Molina, 79 AD3d 1371, 1373-1374 [2010], lv denied 16 NY3d 861

[2011]; People v Ballard, 38 AD3d 1001, 1003 [2007], lv denied 9

NY3d 840 [2007]). Further, the intent to kill may be inferred

from the surrounding circumstances and a defendant's actions,

"and indeed this may be the only way of proving intent in the

typical case of criminal attempt" (People v Bracey, 41 NY2d 296,

301 [1977] [internal quotation marks and citation omitted]; see

People v Johnson, 106 AD3d 1272, 1278 [2013], lvs denied 21 NY3d

1041, 1043, 1045, 1046 [2013]). Contrary to defendant's

assertion, there is no legal inconsistency, in light of the

evidence presented, with the jury finding defendant guilty of

both murder for the death of the victim, based upon a theory of

transferred intent, and attempted murder, based upon his intent

to kill Toomer (see People v Casseus, 120 AD3d 828, 829 [2014]). 

Viewing the evidence in the light most favorable to the People,

we find that the proof was legally sufficient to support

defendant's convictions of these crimes (see People v Culpepper,

118 AD2d 866, 866 [1986], lv denied 68 NY2d 667 [1986]; see also

People v Miller, 118 AD3d 1127, 1128 [2014], lv denied 24 NY3d

1086 [2014]; People v Siler, 288 AD2d 625, 626-627 [2001], lv

denied 97 NY2d 709 [2002]). Further, according deference to the

jury's credibility determinations and viewing the evidence in a

neutral light, we find that the convictions were not against the

weight of the evidence (see People v Casseus, 120 AD3d at 829;

see also People v Williams, 124 AD3d 920, 921 [2015]). 

We agree, however, with defendant's further claim that

County Court committed reversible error by denying his challenge

for cause to a juror who had personal and/or professional

relationships with two investigators involved in the case. A

challenge for cause must be granted if a juror "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"

(CPL 270.20 [1] [b]; accord People v Harris, 19 NY3d 679, 685
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[2012]). 

As to the first witness – an investigator in the District

Attorney's office who later testified, albeit briefly, at trial –

the potential juror stated that he knew the witness "quite well"

and had previously worked for him in a small shop for two years. 

The juror stated that neither he nor the witness still worked for

that business at the time of trial. Further, when asked whether

anything about his relationship with this witness would affect

his ability to be impartial, the juror responded, "[The witness]

has told me a lot of information about different things that go

on. I kind of have a strong feeling with [this witness] and I

believe things he says. I hope it will not interfere with my

judgment." The court did not inquire further about the juror's

relationship with the witness.

The second witness was the lead investigator on defendant's

case. The potential juror stated that he had known the witness

for about seven years and also saw him frequently at a softball

league, where the juror and the investigator each had close

family members who played on the same team. When asked whether

the relationship would affect the juror's ability to be fair, the

juror answered that "he and I were talking the other day and he

said please make them aware that you know me and that I am the

lead investigator on th[e] case." The juror then stated that the

relationship would not affect his judgment.

A juror whose relationship with a potential witness is so

close "that it is likely to preclude him [or her] from rendering

an impartial verdict" (CPL 270.20 [1] [c]) must be excused even

if the juror states that he or she can be impartial, because "the

risk of prejudice arising out of the close relationship . . .

[is] so great that recital of an oath of impartiality could not

convincingly dispel the taint" (People v Branch, 46 NY2d 645, 651

[1979]; see People v Wlasiuk, 90 AD3d 1405, 1412 [2011]). In

determining whether a relationship is so close as to require

disqualification, a court should consider factors "such as the

frequency, recency or currency of the contact, whether it was

direct contact, . . . the nature of the relationship as personal

and/or professional . . . [and] any facet of the relationship

likely to preclude the prospective juror from being impartial"
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(People v Greenfield, 112 AD3d 1226, 1228-1229 [2013], lv denied

23 NY3d 1037 [2014]; see People v Furey, 18 NY3d 284, 287-288

[2011]). As to the first witness, a former working relationship,

without more, will not necessarily give rise to implied bias

requiring disqualification (see People v Scott, 16 NY3d 589, 595

[2011]; People v Pickren, 284 AD2d 727, 727-728 [2001], lv denied

96 NY2d 923 [2001]). Here, however, the juror described the

relationship as more than merely professional; he stated that he

knew the witness well, had discussed many subjects with him, had

strong feelings about him and tended to believe him, and he

volunteered that he was concerned as to whether the relationship

would affect his judgment. The juror's longstanding social

relationship with the second witness was sufficiently close that

the witness was aware that the juror had been called to jury duty

on the case he had investigated, and sufficiently current that

the juror and witness had spoken only a few days before the

trial. Thus, this relationship, like that with the first

witness, "was far more than a 'nodding acquaintance'" (People v

Littebrant, 55 AD3d 1151, 1154 [2008], lv denied 12 NY3d 818

[2009], quoting People v Provenzano, 50 NY2d 420, 425 [1980]). 

Failure to excuse the juror could have "create[d] the perception

that the accused might not receive a fair trial before an

impartial finder of fact" (People v Furey, 18 NY3d at 287; accord

People v Greenfield, 112 AD3d at 1230). Accordingly, based upon

these two relationships, defendant's challenge for cause should

have been granted. In light of this holding, defendant's

remaining contention regarding the potential juror is academic.

Established precedent requires that we reach this

conclusion. It bears mention that, in doing so, we remain rather

painfully aware of the many difficulties that trial courts

encounter in the process of selecting juries, especially where,

as here, the trial is lengthy and involves many witnesses. 

Nevertheless, because of the fundamental importance of the right

to trial by an impartial jury, "the trial court should lean

toward disqualifying a prospective juror of dubious impartiality,

rather than testing the bounds of discretion by permitting such a

juror to serve" (People v Branch, 46 NY2d at 651). By erring on

the side of disqualification, "[t]he worst the court will have

done in most cases is to have replaced one impartial juror with

another impartial juror" (People v Johnson, 94 NY2d 600, 616
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[2000] [internal quotation marks and citation omitted]; see CPL

270.20 [1] [b]; [2]; People v Russell, 116 AD3d 1090, 1093

[2014]). Defendant used a peremptory challenge to excuse the

potential juror and later exhausted his peremptory challenges;

thus, the denial of his challenge for cause was reversible error

(see People v Petke, 125 AD3d 1103, ___, 2015 NY Slip Op 01489,

*2-*3 [2015]; People v Young, 119 AD3d 970, 972 [2014]).

Peters, P.J., Rose and Lynch, JJ., concur.

ORDERED that the judgment is reversed, on the law, and

matter remitted to the County Court of Schenectady County for a

new trial.

ENTER:

Robert D. Mayberger

Clerk of the Court