By: Aliotta, P.J., Toussaint, Golia, JJ. Appellate Advocates (Michael Arthus and Olivia Gee of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Solomon Neubort and Andrew S. Durham of counsel), for respondent.
2019-433 K CR. PEOPLE v. DOUGLAS, TAMEEKAH — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Abena Darkeh, J.), dated January 31, 2019. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child and assault in the third degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. On March 12, 2018, defendant was arraigned on an accusatory instrument charging her with endangering the welfare of a child (Penal Law §260.10 [1]), assault in the third degree (Penal Law §120.00 [1]), attempted assault in the third degree (Penal Law §§110.00, 120.00 [1]), menacing in the third degree (Penal Law §120.15) and harassment in the second degree (Penal Law §240.26 [1]) based on a physical altercation that took place in a schoolyard playground on February 15, 2018. Following a jury trial, defendant was convicted of endangering the welfare of a child and assault in the third degree. The 37-year-old defendant’s contention that she was attempting to break up a fight between her daughter and the complainant, both 13-year-old schoolmates, conflicts with her words and her actions at the time of the incident, as evidenced by the video presented at trial that clearly showed defendant incapacitating solely the complainant, e.g., holding the complainant’s arms and pulling the complainant by her hair. At the same time, defendant was encouraging her daughter to “get” the complainant and to “[p]unch her in the face” while defendant continued to prevent the complainant from defending herself. Even assuming arguendo that the complainant had previously bullied defendant’s daughter and had initiated the February 15, 2018 confrontation with her, defendant’s actions that day were not justified, i.e., they were merely made “to the extent…she reasonably believe[d] such to be necessary to defend [her daughter] from what…she reasonably believe[d] to be the use or imminent use of unlawful physical force by such other person” (Penal Law §35.15 [1]). Rather, they were offensive acts meant to aid her daughter in harming the complainant. Thus, the trial evidence was legally sufficient to support defendant’s conviction, and her conviction was not against the weight of the evidence. Prior to the trial, during voir dire, a prospective juror informed the Criminal Court, “I know [defense counsel]. His daughter and my son were in school together.” Subsequently, during a break in the voir dire, the court dismissed the prospective juror without informing or soliciting input from the prosecutor or defense counsel. When defense counsel later learned of the dismissal, still during voir dire, and questioned it, the court explained that, when the juror “volunteered that she had a relationship, that she knew you,…based on the fact that she knew one side, such that the kids had a relationship, the families had a relationship, I excused her.” Defense counsel objected to the court’s sua sponte dismissal of the prospective juror and noted that his and the juror’s children had ceased being schoolmates five years earlier. No additional information regarding what relationship, if any, the potential juror and defense counsel had during the time their children were schoolmates, or since, appears on the record. Because the prospective juror and defense counsel were not related “within the sixth degree by consanguinity or affinity,” a for-cause dismissal “may” occur upon a finding that their relationship was “of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (CPL 270.20 [1] [c]). Here, the court’s inference, arrived at on its own, that the juror and defense counsel’s “families had a relationship,” after merely being informed that the juror knew defense counsel because their kids had attended the same school, was unfounded. Of course, upon further inquiry it may have come to light that the prospective juror’s and defense counsel’s prior and/or ongoing relationship (if such existed at the time of the trial) indeed precluded her service on the jury. However, her premature dismissal, without providing the parties the opportunity for input, prevented development of the necessary supporting record from taking place. The limited record before us “does not signal a relationship that would preclude fairness on the part of [the] prospective juror,” as there was no objective indication that she and defense counsel were even “nodding acquaintances,” let alone anything more (People v. Provenzano, 50 NY2d 420, 425 [1980]; see People v. Carey, 194 AD3d 553 [2021]; People v. Espinal, 170 AD3d 457 [2019]). Consequently, the court’s dismissal of the prospective juror was an improvident exercise of the discretion afforded it pursuant to CPL 270.20 (1) (c). However, in light of the overwhelming evidence of her guilt, this error was harmless. Defendant’s other appellate contentions — that the Criminal Court’s preclusion of a defense eyewitness and allowance of the prosecution to present a rebuttal case were erroneous — even if meritorious, also are harmless in light of the clear evidence of defendant’s guilt (see People v. Brown, 274 AD2d 609, 610 [2000] [preclusion of witness testimony subject to harmless error analysis]; People v. Mathure, 111 AD2d 876, 876 [1985] ["We find that the rebuttal testimony, while improperly introduced solely to impeach defendant's credibility, was harmless error and did not deprive defendant of a fair trial"]). Accordingly, the judgment of conviction is affirmed. ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur. June 24, 2022
