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A Victor man convicted of first-degree sexual abuse will get a new trial because of an error in the jury selection process and a judge’s decision to exclude a defense witness.
Todd Collins
Todd M. Collins, 36, was convicted in December 2014 of abusing an 8-year-old girl in the city of Canandaigua in 2009. He was sentenced to five years and six months in prison by Ontario County Court Judge Craig J. Doran.
During jury selection, Collins’ trial attorney, Michael Ballman, was forced to use a peremptory challenge to excuse a prospective juror who was Ontario County District Attorney Michael Tantillo’s son-in-law after Doran denied Ballman’s challenge of the juror for cause.
The Appellate Division of state Supreme Court, Fourth Department, wrote in the decision released Dec. 23 that “the prospective juror should have been excused from service for cause.”
There are two types of juror challenges for cause: actual bias and implied bias. If a prospective juror demonstrates actual bias by stating that they consider police more credible than other witnesses, for example, the bias can be overcome if the juror states that they can still be fair and impartial.
But with implied bias, which occurred in Collins’ trial, no statement by the juror can overcome the prejudice.
James Ritts
Assistant Ontario County District Attorney James Ritts, the prosecutor at trial who also handled the appeal, said there was a “misperception” about who the prospective juror had to be related to in order to trigger an implied bias issue.
“I take ownership of that. I know better now,” he said.
Ritts said at the time of the trial he did not believe there was an implied bias issue because Tantillo was not the prosecutor in court.
“At the time, the belief was that the problem would have been if the juror was related to the attorney actually trying the case,” he said.
In retrospect, Ritts said, it’s clear that the juror should have been excused without the need for a peremptory challenge.
“For that part of it I don’t have a real issue with the decision,” he said.
The appellate panel also found that Doran excluded testimony from a defense witness that the victim had said that she did not think that Collins committed the crime.
During cross examination by Ballman, the victim said she had no conversations with the defense witness after the crime happened.
Brian Shiffrin
“When she said she had no conversations, that excluded any conversation, including this one,” said Brian Shiffrin, a partner with Easton Thompson Kasperek Shiffrin LLP, who represented Collins in the appeal.
Doran denied the testimony on the grounds that Ballman did not establish an adequate foundation.
The appellate panel found that Ballman laid an adequate foundation by eliciting testimony from the victim that she never talked to the defense witness about the crime.
“She denied all conversations, and therefore the judge should have allowed the friend to testify,” said Shiffrin.
