New York Criminal Attorney Blog
If you’ve been arrested and are facing a jury trial, one of the most important stages in a jury trial is jury selection. A single biased juror can jeopardize the fairness of your entire case. In a recent opinion out of Brooklyn, a defendant convicted of criminal possession of a weapon in the second degree secured a new trial—not because of what happened during the shooting or trial itself, but because the trial court failed to remove a prospective juror who openly admitted he couldn’t be impartial.
Facts: A Deli Shooting Leads to a Gun Possession Charge
In May 2018, a shooting occurred outside a deli on Kings Highway in Brooklyn. The defendant was later arrested and charged with several crimes, including second-degree criminal possession of a weapon based on allegations that he had a loaded firearm during the incident.
At trial, the prosecution introduced surveillance video, a detective’s identification of the defendant in that video, and testimony from an eyewitness. A jury found the defendant guilty. But on appeal, the case took a dramatic turn—not because of the evidence at trial, but because of a misstep during jury selection.
The Law: When a Juror’s Doubts Require Dismissal
Under New York Criminal Procedure Law § 270.20(1)(b), a potential juror must be excused “if he or she has a state of mind that is likely to preclude him or her from rendering an impartial verdict based on the evidence.” The Court of Appeals has been clear on this point: if a juror expresses doubts about their ability to be fair, they must be removed unless they clearly and unequivocally say they can put those doubts aside and decide the case fairly.
In this case, one of the potential jurors told the court he could not “promise” to ignore the defendant’s decision not to testify. That’s a major red flag. Every defendant has the constitutional right to remain silent, and jurors are forbidden from holding that against them. The law requires an unequivocal assurance that the juror will follow the rules. This one didn’t give it—and the trial court failed to excuse him.
Why That Error Required a New Trial
When a defendant uses up all of their peremptory challenges (which are limited) and the court wrongly refuses to dismiss a biased juror for cause, the error is not harmless. That’s exactly what happened here. The defense objected, used up all its challenges, and still ended up with a jury that may have included someone who couldn’t be fair. That was enough for the appellate court to reverse the conviction and order a new trial.
Other Legal Issues at Trial: Identifications, Video Evidence, and Police Testimony
Because a new trial was ordered, the court also reviewed several other trial rulings that might come up again.
First, the court criticized the decision to let a police detective testify that the defendant was the person in the surveillance video. The detective had only spent 10–15 minutes with the defendant—not enough time to develop the level of familiarity needed to give an opinion the jury couldn’t form on its own. The court made clear that jurors are fully capable of comparing video footage to the person sitting at the defense table.
Next, the court addressed whether the detective’s testimony about how he learned the defendant was a suspect improperly bolstered the case. It did not. The detective’s explanation of the investigative steps was allowed to give context to how the arrest occurred and to complete the narrative—not to vouch for the defendant’s guilt.
The court also upheld the introduction of a photo array identification by a witness who had previously known the defendant but could no longer identify him in court. That’s permitted under New York law, especially when the procedures used in the photo array are sound and the witness had a basis for the earlier identification.
Lastly, the trial court allowed a compilation video made from other evidence that was already admitted. The appellate court found that it had legitimate value for helping the jury understand the timeline of events and that its use did not unfairly prejudice the defendant.
Takeaways: Jury Selection Matters—A Lot
This case is a powerful reminder that jury selection can make or break your defense. If even one juror walks in with a bias—like assuming you must be guilty if you don’t testify—you’re at risk of an unfair trial. And if the court refuses to remove that juror, you may have a strong argument for reversal on appeal.
The case also highlights how easily identification testimony and video evidence can be misused. A police officer’s opinion doesn’t automatically outweigh a juror’s own common sense. The law places limits on who can identify a defendant in court and under what circumstances.
Charged with a Gun Crime in New York? Let Us Defend Your Rights
Facing a weapons charge in New York is serious. But at Tilem & Associates, we take every opportunity to challenge the prosecution—starting with jury selection. From pretrial motions to appeals, we examine every aspect of your case to ensure your rights are protected and no corners are cut.
If you’ve been arrested for a gun offense or any other criminal charge, call Tilem & Associates today at 877-377-8666 or contact us online. You deserve a fair trial, and we’re here to fight for it.