Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered August 29, 2008, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL & SHERI S. ROMAN, JJ.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Balaz, 43 AD3d 949, 949-950; People v Urquidez, 5 AD3d 800, 801; People v Hirsch, 280 AD2d 612, 613). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
Nonetheless, the judgment of conviction must be reversed, and a new trial ordered.
CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if she or he "has a state of mind that is likely to preclude [her or] him from rendering an impartial verdict based upon the evidence adduced at the trial." Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence (see People v Johnson, 94 NY2d 600, 614; People v Blyden, 55 NY2d 73, 77-78; People v Goodwin, 64 AD3d 790, 791; People v Hayes, 61 AD3d 992, 992-993; People v Garrison, 30 AD3d 612, 613). "A prospective juror's responses construed as a whole, must demonstrate an absolute belief that his [or her] opinion will not influence his [or her] verdict'" (People v Goodwin, 64 AD3d at 792, quoting People v Culhane, 33 NY2d 90, 107 [emphasis added]; see People v McQuade, 110 NY 284, 301).
Here, during voir dire, a prospective juror responded to the trial court's inquiry regarding prior experiences as a crime victim as follows:
"THE PROSPECTIVE JUROR: Yes, sir. [¶] I was returning home. I found that my mother, and a neighbor she was friends with, they were found bound and gagged in the apartment that had been burglarized.
"THE COURT: It's an upsetting thing.
"THE PROSPECTIVE JUROR: Yes.
Thereafter, the court inquired of the ...