
    The People of the State of New York, Appellant, v Vernon Branch and Vraden Branch, Respondents.
    Argued March 28, 1979;
    decided April 24, 1979
    
      POINTS OF COUNSEL
    
      Charles J. Wilcox, District Attorney (Robert A. Becher and Robert L. Adams of counsel), for appellant.
    The court below erred in displacing the trial court’s determination that a prospective juror, employed on a part-time basis as a small town constable, bore no relationship to the prosecutor likely to preclude him from rendering an impartial verdict. (People v Culhane, 33 NY2d 90; People v Branch, 59 AD2d 459; People v Biondo, 41 NY2d 483; People v Oddy, 16 AD2d 585.)
    
      E. Stewart Jones, Jr., and Donald J. Shanley for respondents.
    I. The court below properly ruled that the policeman, James Scott, should not have been seated as a juror. (People v Mendola, 2 NY2d 270; People v Culhane, 33 NY2d 90; Turner v Louisiana, 379 US 466; People v Martin, 19 AD2d 804; People v Luedecke, 22 AD2d 636; Rideau v Louisiana, 373 US 723; Estes v Texas, 381 US 532; Sims v United States, 405 F2d 1381.) II. The trial court’s exclusion of critical defense proof in the form of testimony from defense witnesses bearing on the purpose and understood intent of the visit to Geronimo’s and the nature of the so-called "conspiracy” denied the Branch twins their constitutional right to a full and fair defense and irreparably prejudiced their fair trial rights. (Jenkins v McKeithen, 395 US 411; People v Gilliam, 45 AD2d 744, 37 NY2d 722; Webb v Texas, 409 US 95; Chambers v Mississippi, 410 US 284; Davis v Alaska, 415 US 308; People v Baker, 54 AD2d 876; People v Crandall, 48 AD2d 946.) III. The prosecutor’s use on cross-examination of Vraden Branch of questions charging a collateral, unproven, uncharged act of robbery with a weapon was grossly improper and, under the circumstances, an unethical breach of faith and, independently, deprived the Branch twins of their fundamental right to a fair trial. (People v Caviness, 38 NY2d 227; People v Sandoval, 34 NY2d 371; People v Rencher, 49 AD2d 609; People v Reingold, 44 AD2d 191; People v Reyes, 48 AD2d 632; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Santiago, 47 AD2d 476; People v Nash, 49 AD2d 827; United States v Puco, 453 F2d 539; United States v Harding, 525 F2d 84; People v Mullin, 41 NY2d 475; People v Wright, 41 NY2d 172.) IV. The volunteered unresponsive statement by the prosecution witness, Janie Mae Roberts, that she had been released from jail after taking a lie detector test irreversibly and impermissibly bolstered her own credibility, insinuated incurably prejudicial error into the trial and irretrievably deprived the Branch twins of a fair trial. (People v Leone, 25 NY2d 511; People v Neumuller, 29 AD2d 886; People v Forte, 279 NY 204; Bowen v Eyman, 324 F Supp 339.) V. The unwarranted admission of evidence as to crimes not charged in the indictment so prejudiced the Branch twins as to deprive them of their right to a fair trial. (People v Molineux, 168 NY 264; People v McKinney, 24 NY2d 180; People v Kampshoff, 53 AD2d 325; People v Laguna, 34 AD2d 581; People v Lewis, 52 AD2d 929; People v Massey, 7 AD2d 850, 6 NY2d 893; People v Outler, 31 AD2d 639; People v Fiore, 34 NY2d 81.) VI. The trial court’s failure to exclude certain physical evidence whose prejudicial impact far outweighed its probative value, compromised defendants’ right to a fair trial. (People v Laguna, 34 AD2d 581; People v Massey, 7 AD2d 850, 6 NY2d 893; People v Lewis, 52 AD2d 929; People v Fiore, 34 NY2d 81; People v Condon, 26 NY2d 139; People v Mullin, 41 NY2d 475; People v Wright, 41 NY2d 172; People v Ashwal, 39 NY2d 105; People v Adams, 21 NY2d 397.) VII. The court’s failure to exclude certain testimonial evidence improperly impaired the fair trial rights of the Branch twins. Krulewitch v United States, 336 US 440; People v Carborano, 301 NY 38; People v Mullin, 41 NY2d 475; People v Wright, 41 NY2d 172; People v Ashwal, 39 NY2d 105; People v Fiore, 34 NY2d 81; People v Adams, 21 NY2d 397; People v Condon, 26 NY2d 139; People v Massey, 7 AD2d 850, 6 NY2d 893; People v Liller, 20 NY2d 727.) VIII. The court’s failure to dismiss count one of the indictment prior to the commencement of the trial, a failure sponsored, implemented and contributed to by prosecutorial misrepresentation and misconduct prejudicially contaminated the case and compromised the fair trial rights of the Branch twins. IX. The prosecutor committed further error when he deliberately placed before the jury a highly inflammatory exhibit knowing full well that it was inadmissible. (People v Winston, 52 AD2d 432; People v Freytes, 48 AD2d 807; Giles v Maryland, 386 US 66; People v Kitchen, 55 AD2d 575; People v Caruso, 246 NY 437; People v Rial, 25 AD2d 28; People v Tassiello, 300 NY 425.) X. The trial court improperly refused to suppress the oral statements made by the Branch twins. (People v Huntley, 15 NY2d 72; People v Leonti, 18 NY2d 384; People v Valerius, 31 NY2d 51; People v Thasa, 32 NY2d 712; People v Watts, 35 AD2d 802, 29 NY2d 571; Matter of Kevin R., 42 AD2d 541; People v Edney, 47 AD2d 906; People v Townsend, 33 NY2d 37; United States ex rel. Stephen J. B. v Skelly, 430 F2d 215.) XI. The trial court improperly and prejudicially allowed the prosecution at trial, through its police testimony, to enlarge and expand upon the content and scope of the alleged oral statements which had been described and delimited at the Huntley hearing. (People v Greer, 49 AD2d 297; People v Utley, 77 Misc 2d 86; People v Remaley, 26 NY2d 427; People v Quarles, 44 Misc 2d 955; People v Chirico, 61 Misc 2d 157.) XII. The court’s charge on intent impermissibly diluted the prosecution’s burden of proof, had the effect of shifting that burden of proof and mislead the jury with respect to the requirements that the prosecution prove every element of the offense beyond a reasonable doubt. (Mullaney v Wilbur, 421 US 684; United States v Chiantese, 546 F2d 135; United States v Barash, 365 F2d 395; United States v Bertolotti, 529 F2d 149; People v Jackson, 10 NY2d 510; People v Felcone, 43 AD2d 976; People v Rainey, 34 AD2d 557; People v Benjamin, 47 AD2d 861; People v May, 55 AD2d 739.) XIII. The trial court improperly permitted the prosecution witness Crawford to testify to and about statements made by "unidentified” persons in the course of the events at Geronimo’s restaurant was improper, highly prejudicial and directly violated the accuseds’ Sixth Amendment rights to confront and cross-examine the witnesses against them. (People v Weiss, 290 NY 160; 
      Matter of Sabatini v Kirwan, 42 AD2d 1022; United States v Nixon, 418 US 683; United States v Stroupe, 538 F2d 1063; United States v Oliva, 497 F2d 130.)
   OPINION OF THE COURT

Wachtler, J.

After a joint jury trial defendants Vernon and Vraden Branch were convicted of murder in the second degree (Penal Law, § 125.25, subd 3) and robbery in the first degree (Penal Law, § 160.15). On appeal to the Appellate Division both defendants argued, among other things, that the trial court erred, as a matter of law, in denying their challenge for cause to excuse a venireman from the jury. The Appellate Division held that the denial of the challenge for cause constituted reversible error under CPL 270.20 (subd 1, par [c]), reversed the judgments of conviction and remanded for a new trial. This case presents a novel question of statutory interpretation.

During the course of the jury selection process after the defendants had exhausted their peremptory challenges, James Scott was called to the jury box. Extensive questioning of Scott revealed that he had been serving as a part-time police officer in Poestenkill, a town in Rensselaer County, for three years. In his capacity as a police officer Scott had worked in conjunction with the Rensselaer County District Attorney’s office, and in some cases particularly closely with the State’s trial attorney in the present case. It was further disclosed that the two had developed a personal relationship, on occasion having socialized together.

After eliciting this testimony from Scott, the court asked him a series of questions designed to determine if he could serve as an impartial juror. In response Scott stated that neither his work as a police officer nor his relationship with the prosecutor would influence his verdict, and that he could render an impartial verdict according to the evidence. Based on these assurances, the court denied defendants’ challenge for cause, and seated Scott as a juror.

The issue is whether the court erred, as a matter of law, in allowing Scott to participate as a juror. We hold that Scott’s professional and personal relationship with the People’s trial attorney rendered him unsuitable for jury service in this case within the meaning of CPL 270.20 (subd 1, par [c]). We further hold the expurgatory oath unavailable where this statutory provision disqualifies a juror.

To determine the meaning of CPL 270.20 (subd 1, par [c]), it is instructive to review the relevant law prior to its enactment. Before the adoption of the Criminal Procedure Law, the rules governing challenges for cause were prescribed by section 376 of the Code of Criminal Procedure which provided for the automatic disqualification of prospective jurors for "implied bias”. Among the eight enumerated categories of implied bias were having a relationship of consanguinity or affinity within the ninth degree to the defendant, victim, or complainant (Code Crim Pro, § 377, subd 1), being an adverse party to the defendant in a civil action (Code Crim Pro, § 377, subd 3), and being a complainant against or having been accused by the defendant in another criminal case (Code Crim Pro, § 377, subd 3). An expurgatory oath was not available where implied bias was shown.

A juror could also be challenged for cause under the old law for "actual bias”, defined as "the existence of a state of mind on the part of the juror” as to the guilt or innocence of the defendant. Such a state of mind would not disqualify the juror if he declared on oath to the satisfaction of the court that his opinions would not influence his verdict, and that he could render an impartial verdict according to the evidence. (Code Crim Pro, § 377, subd 2; People v Biondo, 41 NY2d 483; People v Wilmarth, 156 NY 566, 569.)

The new statute, which is controlling here, is similar in many respects to the old one. Although the term "implied bias” has been abandoned, the concept underlying the term has survived. Thus a challenge for cause may be made on the ground that the juror "is related within the sixth degree of consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant; or that he is or was a party adverse to any such person in a civil action; or that he has complained against or been accused by any such person in a criminal action” (CPL 270.20, subd 1, par [c]). The new law, however, has included one additional ground for disqualifying a prospective juror. A venireman may not serve if "he bears some other relationship to any such person [e.g., the defendant or either counsel] of such nature that it is likely to preclude him from rendering an impartial verdict” (CPL 270.20, subd 1, par [c]).

First it must be noted that Scott’s professional and personal relationship to the prosecutor in this case places him squarely within the above provision. As a part-time police officer in Poestenkill during the past three years he had had direct contact with the Rensselaer County District Attorney’s office, and had worked directly with the prosecutor. In addition his professional contact with him grew into a personal relationship so that on occasion they had socialized together. These facts establish, as a matter of law, that the nature of this relationship was "likely to preclude [Scott] from rendering an impartial verdict” (CPL 270.20, subd 1, par [c]).

The People argue nevertheless that in view of Scott’s expurgatory declarations the court was within its discretion in allowing him to serve as a juror. We disagree.

As stated, under the old law an expurgatory oath was not available where "implied bias” was shown. The reason for this rule was that the risk of prejudice arising out of the close relationship between the prospective juror and one of the key participants in the trial was so great that recital of an oath of impartiality could not convincingly dispel the taint. In enacting CPL 270.20 (subd 1, par [c]) the Legislature broadened the list of suspect relationships to exclude from jury service those persons who bear "some other relationship * * * likely to preclude [them] from rendering an impartial verdict”. To be sure such individuals are equally unfit to sit as jurors as are those who fall within the other prohibited categories. The expurgatory oath was never applied where any of the other suspect relationships were involved, and there is no indication whatsoever that the Legislature intended to diverge from this principle here (see People v Culhane, 33 NY2d 90, 104, n 2).

By contrast, CPL 270.20 (subd 1, par [b]) allows a challenge for cause where a prospective juror "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial”. This provision is analogous to subdivision 1 of section 376 of the Code of Criminal Procedure which similarly allowed a challenge for cause for a prejudicial "state of mind on the part of the juror” as to the guilt or innocence of the defendant. It is here, rather than in the case of a suspect relationship, that the expurgatory oath is available (People v Biondo, 41 NY2d 483, supra; People v Genovese, 10 NY2d 478).

We would add that 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. It is precisely for this reason that so many veniremen are made available for jury service. Nothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury. The presumption of innocence, the prosecutor’s heavy burden of proving guilt beyond a reasonable doubt, and the other protections afforded the accused at trial, are of little value unless those who are called to decide the defendant’s guilt or innocence are free of bias.

Accordingly, the orders of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler.

Orders affirmed.  