NY Daily Record Since 1908
New York State Supreme Court, Appellate Division, Fourth Judicial Department
Tainted juror
Justification for pat down frisk
KA 18-01776
Appealed from Monroe County Court
Background: The defendant appealed from his conviction of burglary. He argues a new trial is warranted because the county court failed to address a potential taint of the jury pool after certain comments were made by a prospective juror. He also argues that the officer lacked justification for doing a frisk search.
Ruling: The Appellate Division affirmed. The court noted that the defendant did not seek relief from the court after the juror was excused. The defendant then continued to participate in jury selection, during which time the other prospective jurors were thoroughly questioned on their potential biases, and the defendant acquiesced to the selected jurors. The Appellate Division further held that the officer did not seize the items removed from the defendant’s vest pocket after putting them back in the pocket. The seizure of the items occurred after the victim identified the defendant as the perpetrator of the crime. The frisk was justified given the nature of the dispatch as a burglary, the presence of the defendant near the scene, and the defendant’s inability to explain where he was going to or coming from.
Carlyn Walther, of the conflict defender’s office, for the defendant-appellant; Merideth H. Smith, of the district attorney’s office, for the respondent.
