The opinion of the court was delivered by: Graffeo, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The primary issue in this appeal is whether Supreme Court abused its discretion when it dismissed a hearing-impaired prospective juror for cause. We hold that it did not based on the particular facts of this case.
Defendant Dean Guay discovered that he was the father of a child (whom we refer to as Jane) when the girl was four years old. He subsequently visited his daughter on alternate weekends and spent time with her in the summers. Defendant also vacationed with Jane and other members of his family at a summer camp in Clinton County.
At some point in August 2005, when Jane was seven years old, defendant picked her up from her mother's house for a scheduled week-long trip to the camp. While there, Jane woke up one night to find defendant crawling into the bed that she was occupying with other children. She went back to sleep but was awoken again when defendant removed her pants. He pulled Jane toward him, touched her chest and genital area, and then inserted his finger and penis into her vagina. Defendant stopped when his one-year-old son, who was also in the bed, woke up.
The next morning, defendant brought Jane and the other children to his
mother's house for breakfast and afterwards defendant drove her home.
During the trip, defendant did not speak to Jane but, upon arrival,
defendant announced that he was not going to see her anymore.
Defendant then terminated his relationship with his
daughter.*fn1 Jane told her mother that defendant did
not want to visit with her but did not disclose her
father's sexual misconduct at that time because she did
not comprehend that defendant's actions were wrong.
In May 2007, after attending an educational program at her school relating to sex-related issues, Jane realized that her father had engaged in inappropriate sexual contact with her. She then told a school counselor what had happened to her. The police were notified and Jane was interviewed by State Police Investigator Karen DuFour and Child Protective Services caseworker Thom Schultz.
Defendant was incarcerated when the authorities learned of Jane's accusations. On the day he was released from jail, Investigator DuFour met with him. After DuFour issued Miranda warnings to defendant, Schultz engaged defendant in a discussion about his daughter's disclosures. Although defendant initially denied having any improper physical contact with his daughter, he eventually confessed that he crawled into the bed and sexually assaulted Jane, but he did not admit to penetrating her with his penis. Defendant also revealed that he terminated his relationship with Jane after the incident because he was "too embarrassed" or "too ashamed" of what he had done, so "it was easier just not to see her."
Defendant was indicted for first-degree rape, first-degree sexual abuse and endangering the welfare of a child. During jury selection, after groups of venire members were placed in the jury box for individual questioning, the trial court read introductory instructions to these prospective jurors and inquired if anyone had difficulty hearing. When venire member 1405 responded affirmatively, the court repeated the information. The prosecutor later asked whether any of the prospective jurors knew a person who had confessed to a crime that he or she did not commit. Venire member 1405 answered that he did and went on to explain that his son was incarcerated for drug possession. The prosecutor asked, "[d]id he admit to possessing the drugs? Did he make a confession?" Venire member 1405 replied "I don't know, I didn't go to any of the trial. I stayed away." The prosecutor responded, did "[y]ou feel that he was innocent?" and the prospective juror said "No."
Defense counsel apparently realized that venire member 1405 was having trouble comprehending the questions and asked him if he had "any problems hearing as long as we speak up?" He replied "[o]nce in a while you talk awfully low." Defense counsel remarked, "I have to be reminded to speak up. But you could sit on a jury throughout the course of the week? You don't think you would have any hearing problems as long as I speak up?" The prospective juror responded "I'm pretty good right here in the front" row of the jury box.
At the conclusion of this round of voir dire, the People moved to
dismiss venire member 1405 for cause. The prosecutor noted that the
panelist "had trouble hearing the
[c]court" and that child victims frequently "have trouble
up" when they testify, which raised a concern that
venire member 1405 could "miss critical parts of [Jane's] testimony."
Defense counsel opposed the request, arguing that the prospective
juror had indicated that he would not have a problem hearing during
the trial. Although Supreme Court agreed with defense counsel's
characterization of venire member 1405's statements, the judge further
"I think he's inaccurate in his answer because he indicated he had difficulty hearing certain things and by his nonverbal reactions to various questions you could tell that he was having difficulty hearing the three of us. I do think that and I think that the People make a valid point that children tend to be more soft spoken witnesses, and adults, all things considered, I think his hearing is a big enough problem here that it does disqualify him from serving as a juror."
The court therefore granted the People's challenge for cause.
At trial, the People's witnesses included a nurse practitioner who provided medical testimony regarding Jane's gynecological examination. She established that Jane's hymenal ring evidenced a disruption and scar tissue, that it was "not very probable" that the injury occurred naturally and that such a condition was consistent with "some blunt force of penetration" caused by a finger or a penis. Caseworker Schultz testified about ...