PEOPLE v. DEGONDEA
269 A.D.2d 243 (2000)
705 N.Y.S.2d 20
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID DEGONDEA, Appellant.
Appellate Division of the Supreme Court of the State of New York, First Department.
Decided February 17, 2000.
Concur — Sullivan, J. P., Nardelli, Mazzarelli, Andrias and Saxe, JJ.
Defendant was found guilty of the murder of a police officer during a shootout on the Lower East Side on March 10, 1993. The shooting resulted from the botched sale of 4 pounds of marihuana to an undercover officer. During his trial testimony, the defendant admitted firing at the officer, but claimed that his actions were justified because he thought the deceased and the other officers were Colombian drug dealers who were attempting to rob him. The jury rejected defendant's account, convicting him of murder, attempted murder, possession of a weapon and illegal sale of marihuana.
At trial, the voir dire questioning was not stenographically recorded, but the portion of the voir dire proceedings that included the parties' challenges and the court's rulings was transcribed. When this appeal was originally before us (People v Degondea,
The reconstruction court construed our prior order as finding that defendant had "raised an appealable issue * * * concerning whether the jurors' statements entitled [the defendant] to cause excusals", and it concluded that the People had the burden of proving by a preponderance of the evidence both that
The basis for the defense challenge to the juror at issue was the juror's statements about a close friendship with a New York City police captain assigned to a narcotics squad. The juror testified at the reconstruction hearing that he would presently feel uncomfortable sitting on a jury in a case in which a police officer was involved, but he did not recall if he had expressed this concern four years earlier, at the time of the voir dire. The Court of Appeals has instructed that a friendship with a police officer does not require per se disqualification of a prospective juror (People v Colon,
Assistant District Attorney (ADA) Greenbaum, the lead prosecutor, testified at the reconstruction hearing that his regular jury selection practice involved specific inquiry of every juror whether he/she could be fair and impartial, and defense counsel confirmed that he thought the juror at issue was asked this question. Defense counsel testified, "I remember from the tone and tenor of what [the juror] said, that [his friendship with the officer] would affect him in being able to sit fairly in this case". Co-defendant's counsel also made a notation during the original voir dire indicating that this juror would favor the prosecution, and he and defendant both testified at the reconstruction hearing that the juror had stated he could not be fair.
However, the juror, who had no interest in the proceedings, testified at the reconstruction hearing that he was "pretty sure" that he was asked if he could be a fair and impartial juror, and
Thus, while the record supports the reconstruction court's conclusion that the juror may have initially expressed discomfort sitting on a case involving a police officer, the totality of the reconstruction record does not reveal that the court violated CPL 270.20 (1) (b) as a matter of law by refusing defense counsel's challenge for cause (People v Smith,
None of the other points raised by defendant in the original appeal provides an independent basis for reversal. Defendant urged that the trial court committed reversible error in refusing to instruct the jury on that portion of the justification defense authorizing the use of deadly physical force in defense of a third person (Penal Law § 35.15 ,  [a]), arguing that a reasonable view of the evidence existed that defendant shot his weapon in defense of his accomplices. Under the facts of this case, however, we conclude that the court's refusal to charge justification in defense of a third person was harmless error (see, People v Albino,
Defendant also argued that he was denied the fundamental right to present witnesses in his own defense (see, Chambers v Mississippi,
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