Appeal from a judgment of the District Court of Nassau County, First District (Valerie Bullard, J.), rendered February 27, 2007. The judgment convicted defendant, upon a jury verdict, of assault in the third degree.
People v Steward (Jerome)
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on August 1, 2011
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
ORDERED that the judgment of conviction is affirmed.
After a jury trial, defendant was convicted of assault in the third degree (Penal Law § 120.00 ) upon proof, the sufficiency of which defendant does not dispute, that he had punched and kicked the complainant, his spouse, fracturing her ankle and causing her considerable pain. On appeal, defendant argues that the District Court erred in denying his application to excuse a prospective juror for cause, forcing him to exercise a peremptory challenge, which proved prejudicial because he exhausted his peremptory challenges before jury selection was complete. Defendant further contends that the court allowed the People, on their direct case, to elicit testimony from the complainant as to prior episodes when defendant had physically and verbally abused her. We find these claims to be without merit and affirm.
The District Court properly denied defendant's request that a juror be excused for cause. Prospective jurors should be excused for cause when they "openly acknowledge doubt that they c[an] be fair in the case" (People v Johnson, 94 NY2d 600, 615 ) and "cannot unequivocally promise to set aside this bias" (id. at 614, quoting People v Sharper, 255 AD2d 139, 140 ). The prospective juror assured the court, without qualification or indicia of uncertainty, that he could be a fair and impartial juror (see People v Johnson, 94 NY2d at 615), and his statements, "taken in context as a whole" (People v Chambers, 97 NY2d 417, 419 ), did not require that he be excused for cause.
Even were we to find that the juror should have been excused for cause, there was no reversible error. Reversible error occurs where the court erroneously denies a defendant's request that a prospective juror be excused for cause, the defense exercises a peremptory challenge to the juror, and the defense exhausts its peremptory challenges before jury selection is complete (CPL 270.20 ; see People v Lynch, 95 NY2d 243, 251-252 ; People v Wilson, 7 AD3d 549, 550 ; People v Scott, 170 AD2d 627, 628 ). The rule is inapplicable where, as here, the principal jury panel is selected before the defense exhausts its peremptory challenges (People v Libardi, 12 AD3d 534 ; People v Dicks, 287 AD2d 517 ), and where an alternate juror, even if erroneously seated over the objection of a defense counsel who has exhausted his peremptory challenges, never deliberates (e.g. People v White, 297 AD2d 587, 588 ; People v Henry, 116 AD2d 737, 738 ; People v Rechin, 28 Misc 3d 126[A], 2010 NY Slip Op 51169[U] [App Term, 9th & 10th Jud Dists 2010]).
The District Court did not improvidently exercise its discretion in admitting the evidence of defendant's prior conduct with respect to his spouse. In cases involving domestic violence, evidence of a defendant's prior abusive conduct toward the victim, whether physical or verbal, is generally admissible as relevant evidence of a defendant's motive and intent, and as background evidence probative of the context in which the charged acts occurred (see People v Till, 87 NY2d 835, 837 ; People v Hanson, 30 AD3d 537, 538 ; People v Bobrowsky, 23 Misc 3d 137[A], 2009 NY Slip Op 50862[U] [App Term, 9th & 10th Jud Dists 2009]; People v Ben-Ezra, 19 Misc 3d 139[A], 2008 NY Slip Op 50892[U] [App Term, 9th & 10th Jud Dists 2008]). A trial court must "exercise discretion to limit the admission of such proof to the purposes for which it is legitimately probative . . . and to avoid undue prejudice, in particular the risk that the proof will be offered and received to demonstrate defendant's criminal disposition and character and thus [that he was] likely to have committed the crime charged" (People v MacShane, 17 Misc 3d 78, 82 [App Term, 9th & 10th Jud Dists 2007] [internal quotation marks and citations omitted]; see e.g. People v Leeson, 12 NY3d 823, 826-827 ; People v Alvino, 71 NY2d 233, 241-243 ; People v Foster, 211 AD2d 640 ). Here, the proof was limited to a single prior incident of physical abuse, and to a pattern of verbal abuse in the form of name-calling. The evidence was relevant for the purposes for which it was offered and was not unduly prejudicial.
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.