Appeals Panel Orders New Trial; Judge Should Have Dropped Potential Juror
FRIDAY, APRIL 01, 2016

A panel of the Appellate Division, Second Department, has ordered a new trial in People v.Malloy because the trial judge should have granted a motion to dismiss a prospective juror who expressed doubt that she could render an impartial verdict.

Tina Luongo, the Attorney-in-Charge of the Criminal Practice, told the NYLJ, "The jury already had acquitted Mr. Malloy of all of the felony charges against him. We are gratified that the Appellate Division decision will give him the opportunity to vindicate himself as to the remaining misdemeanor charge."

William Carney, a Staff Attorney in the Criminal Appeals Bureau, William Carney of the Legal Aid Society represented Malloy.




New York Law Journal
Judge Should Have Dropped Potential Juror, Panel Rules
Andrew Denney
April 1, 2016

A Brooklyn appeals court has ordered a new trial for a man who was convicted of third-degree assault in 2014, ruling that the trial judge should have granted a motion to dismiss a prospective juror who expressed doubt that she could render an impartial verdict.

Derek Malloy, 52, was charged with assault and fourth-degree criminal mischief for allegedly assaulting a woman on Nov. 3, 2012 in Brooklyn by kicking in her driver's-side car window while she was behind the wheel, which injured her eye, according to his indictment.

During voir dire for Malloy's trial, a prospective juror said that, because her aunt was the victim of a violent sexual assault, it would "be a little hard" for her to keep an open mind while listening to the facts of the case.

The potential juror also said she could manage to give Malloy a fair trial, but didn't know if her aunt's experience would affect her judgment.

Malloy's attorney moved to dismiss the juror for cause, but Acting Brooklyn Supreme Court Justice Miriam Cyrulnik denied the motion, and Malloy's attorney used a peremptory challenge to dismiss the juror.

Writing in People v. Malloy, 60/14, a panel of the Appellate Division, Second Department, wrote that a potential juror's answers to questions must indicate an "absolute belief" that his or her prior opinions will not influence their verdict.

The panel consisted of Justices L. Priscilla Hall, Leonard Austin, Sandra Sgroi and Hector LaSalle.

Assistant District Attorneys Leonard Joblove and Morgan Dennehy appeared for the Brooklyn District Attorney's Office.