THE PEOPLE OF THE STATE OFNEW YORK,Respondent,v MEMORANDUM AND ORDERJEFFREY L. HORTON,Appellant.________________________________Calendar Date: May 1, 2018Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker, JJ.__________Danielle Neroni Reilly, Albany, for appellant.Matthew VanHouten, District Attorney, Ithaca (Andrew J.Bonavia of counsel), for respondent.__________Pritzker, J.Appeal from a judgment of the Supreme Court (Cassidy, J.),rendered July 22, 2016 in Tompkins County, upon a verdictconvicting defendant of the crimes of burglary in the firstdegree, burglary in the second degree, rape in the first degree,criminal sexual act in the first degree, aggravated sexual abusein the third degree, sexual abuse in the first degree, assault inthe third degree, unlawful imprisonment in the second degree,stalking in the third degree, stalking in the fourth degree andmenacing in the third degree.Defendant was charged in a 15-count indictment with variouscrimes allegedly committed against his ex-girlfriend. Followinga jury trial, he was found guilty of 11 counts: burglary in thefirst degree, burglary in the second degree, rape in the firstdegree, criminal sexual act in the first degree, aggravatedsexual abuse in the third degree, sexual abuse in the firstdegree, assault in the third degree, unlawful imprisonment in thesecond degree, stalking in the third degree, stalking in thefourth degree and menacing in the third degree. County Courtsentenced him to an aggregate prison term of 12 years, followedby five years of postrelease supervision. Defendant appeals.Defendant contends that his convictions are against theweight of the evidence. Here, the victim, defendant and anotherwitness all testified regarding the days leading up to the attackwhen defendant repeatedly and incessantly contacted the victim,after he ended their relationship, by way of phone calls, textmessages and appearing at the victim’s house and her place ofwork either unannounced or expressly uninvited. The victimtestified regarding the night of the attack when she woke up todefendant standing in her bedroom, frustrated that she wasignoring his calls, and threatening to kill her if she tried toleave. The victim testified that, although defendant had a keyto her house, he relinquished that key by throwing it at her and,after defendant ended their relationship, she repeatedlyinstructed him to leave her alone and not come to her home.Notably, defendant conceded at trial that he was not given anyexpress permission to enter the victim’s home on the night inquestion. The victim then testified regarding vaginal and analsexual intercourse, that defendant penetrated her vaginally witha vibrator and that defendant performed oral sex on her, all actsto which defendant admitted. However, the victim testifiedexplicitly that there was nothing consensual about any of thissexual contact; her testimony that she was forcibly bound, beatenand actively resisted was corroborated by photographs andtestimony by law enforcement, as well as medical professionals.The victim also testified to being pinned down and informed atleast once not to try and escape. The victim also testifiedregarding physical injuries inflicted on her by defendant, andwhich defendant readily admitted to having inflicted, includingbruises, swelling and what was ultimately diagnosed aspostconcussion syndrome that kept the victim out of work for overa month.While there were certainly differences between the victim’sand defendant’s versions of events, their conflicting testimony“presented a classic he-said she-said credibility determinationfor the jury to resolve” (People v Kiah, 156 AD3d 1054, 1056[2017] [internal quotation marks and citation omitted], lvsdenied 31 NY3d 981, 984 [2018]; see People v Brabham, 126 AD3d1040, 1043 [2015], lvs denied 25 NY3d 1160, 1171 [2015]).“Viewing the evidence in a neutral light and according deferenceto the jury’s credibility assessments, the verdict is supportedby the weight of the evidence as to all of the charged crimes”(People v Brabham, 126 AD3d at 1043 [citations omitted];see People v McCann, 126 AD3d 1031, 1033 [2015], lv denied 25NY3d 1167 [2015]).Defendant also contends that he was deprived of a fairtrial due to the denial of four of his challenges for cause basedon preexisting relationships between the prospective jurors andwitnesses (see CPL 270.20 [1] [b], [c]). Turning first todefendant’s contention regarding prospective juror No. 4 fromround three, she indicated that she knew Ruth Crepet, a physicianthat the People intended to call as a witness, as Crepet was herprimary care physician of 15 years. Although the juror statedthat she had a preconceived notion that Crepet would be truthful,she indicated that she could be impartial and fair at trial inthat regard. This juror also stated that her husband was thevictim of a robbery and, because the person “got off,” she was “alittle cynical” about the criminal justice system, but “wouldtry” to be impartial and thought “that [she] could be.” Whenasked if she could find defendant guilty, this juror stated “yes,you bet.” Defendant challenged this juror for cause on theforegoing grounds, but Supreme Court determined that she hadsufficiently rehabilitated herself, and defendant utilized aperemptory challenge to exclude her.While it is not necessarily an issue that Crepet was theprospective juror’s doctor (see People v Stanford, 130 AD3d 1306,1309 [2015], lv denied 26 NY3d 1043 [2015]), her generalequivocality is problematic. “Equivocal, uncertain responses,including statements that a prospective juror will ‘try’ or‘hope’ to be impartial, are insufficient in the absence of[other] ‘express and unequivocal’ declarations that the jurorwill put any preconceptions aside and render an impartial verdictbased solely on the evidence” (People v Burdo, 256 AD2d 737, 740[1998]; see People v Garcia, 125 AD3d 882, 883-884 [2015]).Here, while some of the prospective juror’s responses wereunequivocal, many were not, and, as such, her responses as awhole do not demonstrate that her opinion would not influence herverdict (see People v Hutthinson, 150 AD3d 887, 887-666 [2017]).Therefore, further inquiry was needed and, in the absence of saidinquiry, it was error for Supreme Court to deny defendant’schallenge for cause (see People v Alvarez, 130 AD3d 1054, 1055[2015]; People v Burdo, 256 AD2d at 740; compare People v Vargas,155 AD3d 1530, 1531 [2017]; lv denied 30 NY3d 1121 [2018]).Because the defense exhausted its allotment of peremptorychallenges prior to the completion of jury selection, thejudgment of conviction must be reversed (see People v Alvarez,130 AD3d at 1055).While this determination renders defendant’s remainingarguments academic, as the matter is returning to Supreme Courtfor a new trial, we briefly address two arguments. First, weagree with defendant that the People’s use of defendant’spretrial selective silence was improper (see People v Williams,25 NY3d 185, 188 [2015]; compare People v Savage, 50 NY2d 673,677-678 [1980], cert denied 449 US 1016 [1980]; People vRothschild, 35 NY2d 355, 360-361 [1974]). We also agree withdefendant that portions of testimony by Crepet and Jeremiah Allenwere too detailed to fall within the prompt outcry hearsayexception and, as such, constituted impermissible bolstering (seePeople v Green, 108 AD3d 782, 784 [2013], lv denied 21 NY3d 1074[2013]; compare People v Gross, 26 NY3d 689, 694-695 [2016];People v Manning, 81 AD3d 1181, 1184 [2011], lv denied 18 NY3d959 [2012]).Garry, P.J., McCarthy, Devine and Aarons, JJ., concur.ORDERED that the judgment is reversed, on the law, andmatter remitted to the Supreme Court for a new trial.ENTER:Robert D. MaybergerClerk of the Court
