OPINION OF THE COURT
Aftеr a joint jury trial defendants Vernon and Vraden Branch were convicted of murder in the second degree (Penal Law, § 125.25, subd 3) and robbery in the first degree (Penal Law, § 160.15). On аppeal to the Appellate Division both defendants argued, among other things, that the trial court erred, as a matter of law, in denying their challenge for cause to excuse a venireman from the jury. The Appellate Division held that the denial of the challenge for cause constituted reversible еrror under CPL 270.20 (subd 1, par [c]), reversed the judgments of conviction and remanded for a new trial. This case presents a novel question of statutory interpretation.
During the course of the jury selection process after the defendants had exhausted their peremptory challenges, James Scott was called to the jury box. Extensive questioning of Scott revealed that he had been serving as a part-time police officer in Poestenkill, a town in Rensselaer Cоunty, for three years. In his capacity as a police officer Scott had worked in conjunction with the Rensselaer County District Attorney’s office, and in some cases particularly closely with the State’s trial attorney in the present case. It was further disclosed that the two had developed a pеrsonal relationship, on occasion having socialized together.
After eliciting this testimony from Scott, the court asked him a series of questions designed to determine if he could serve as an impartial juror. In response Scott stated that neither his work as a police officer nor his relationship with the prosecutor would influence his verdict, and that he could render an impartial verdict according to the evidence. Based on these assurances, the court denied defendants’ challenge for cause, and seated Scott as a juror.
The issue is whether the court erred, as a matter of law, in allowing Scott to participate as a juror. We hold that Scott’s professional and personal relationship with the People’s trial attorney rendered him unsuitable for jury service in this case within the meaning of CPL 270.20 (subd 1, par [c]). We further hold the expurgatory oath unavailable where this statutory provision disqualifies a juror.
A juror could also be challenged for cause under the old law for "actual bias”, defined as "the existence of a state of mind on the part of the juror” as to the guilt or innocence of the defendant. Such a state of mind would not disqualify the juror if he declared on oath to the satisfaction of the court that his opinions would not influence his verdict, and that he could render an impartial verdict according tо the evidence. (Code Crim Pro, § 377, subd 2; People v Biondo,
The new statute, which is controlling here, is similar in many respects to the old one. Although the term "implied bias” has been abandoned, the concept underlying the term has survived. Thus a challenge for cause may be made on the ground that the juror "is related within the sixth degree of consanguinity оr affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant; or that he is or was a party adverse to any such person in a civil action; or that he has complained against or been accused by any such person in a criminal action” (CPL 270.20, subd 1, par [c]). The new law, however, has included one additional ground for disqualifying a рrospective juror. A venireman may not serve if "he bears some other relationship to any such person [e.g., the defendant or either counsel] of such nature that it is likely to preclude him from rendering an impartial verdict” (CPL 270.20, subd 1, par [c]).
First it must be noted that Scott’s professional and personal relationshiр to the prosecutor in this case places him squarely
The People argue nevertheless that in view of Scott’s expurgatory declarations the court was within its discretion in allowing him to serve as a juror. We disagree.
As stated, under the old law an expurgatory oath was not available where "implied bias” was shown. The reason for this rule was that the risk of prejudice arising out of the close relationship between the prospective juror and one of the key participants in the trial was so great that recital of an oath of impartiality could not convincingly dispel the taint. In enacting CPL 270.20 (subd 1, par [c]) the Legislature broadened the list of suspect relationships to exclude from jury service thosе persons who bear "some other relationship * * * likely to preclude [them] from rendering an impartial verdict”. To be sure such individuals are equally unfit to sit as jurors as are those who fall within the other prohibited categories. The expurgatory oath was never applied where any of the other suspect relationships were involved, and there is no indication whatsoever that the Legislature intended to diverge from this principle here (see People v Culhane,
By contrast, CPL 270.20 (subd 1, рar [b]) allows a challenge for cause where a prospective juror "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial”. This provision is analogous to subdivision 1 of section 376 of the Code of Criminal Procedure which similarly allowed a challenge for cause for a prejudicial "state of mind on the part of the juror” as to the guilt or innocence of the defendant. It is herе, rather than in the case of a suspect relationship, that the expurgatory oath is available (People v Biondo,
We would add that the trial court should lean toward disquаlifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve. It is precisely for this reason that so
Accordingly, the orders of the Appellate Division should be affirmed.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler.
Orders affirmed.