author: Stein, J.

text:
    [78 NE3d 804, 56 NYS3d 275]
    The People of the State of New York, Respondent, v Nirun Honghirun, Appellant.
    Argued May 3, 2017;
    decided June 8, 2017

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (.Patricia Pazner of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Deborah E. Wassel, John M. Castellano, Joseph Ferdenzi and Sharon Y. Brodt of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

In this child sex abuse case, defendant has not established that he was denied the effective assistance of counsel. He has not demonstrated the absence of strategic or legitimate explanations for counsel’s failure to object to the admission of evidence that the victim disclosed the abuse three years after it ceased, and then again four years after her initial disclosure. Therefore, we affirm.

I.

Defendant was charged in an indictment with course of sexual conduct against a child in the first and second degrees after the then 17-year-old victim, a member of defendant’s extended family, revealed to a school counselor that defendant had molested her repeatedly when she was between the ages of 5 and 10 years old. Defendant acknowledges that the defense at trial was that the disclosure to the school counselor was a recent fabrication, but argues that the defense was not adopted until summations and was inexplicable given the testimony that the victim had disclosed the abuse to three friends approximately four years earlier. However, the record reflects that defense counsel’s strategy of portraying the victim as a troubled teen who fabricated the allegations was evident as early as voir dire and continued throughout trial. For example, during voir dire, counsel informed the jury that “the case [was] about” the “significant amount of time that passed before [the victim] told anybody about this,” and asked the jurors to determine whether the victim was a troubled teen based on all the evidence. Counsel later confirmed that this was the strategy that he had chosen to employ from the beginning of trial, stating during a sidebar, “[a]s you know from my voir dire, your Honor, one of my arguments is that this young lady is a troubled teen.”

Counsel further laid the groundwork for a recent fabrication defense in his opening statement, asserting that the victim waited seven years to “say something . . . [t]hat’s a long time,” and explaining that, even if the jury believed the victim’s claim that she previously disclosed the abuse to her friends, she waited an additional four years to tell an adult. Counsel asserted that the victim would give details of the abuse and urged the jury to compare her different statements in analyzing the victim’s credibility. Counsel also acknowledged that the People would present expert testimony explaining “delay in outcry” and that delay did not mean that the abuse did not occur, but argued that the delay did not necessarily mean that the victim’s claims were true.

The victim’s parents testified that, during the relevant time frame, they frequently brought the victim to defendant’s apartment for babysitting. The victim testified that, beginning in 1999, when she was about five years old and for a period of about five years thereafter, defendant repeatedly touched her genitals both over and under her clothing, and made her touch his genitals over and under his clothes. Defendant also had the victim get on top of him and “ride” him while clothed, performed oral sex on her three times and twice made her watch pornography in his bedroom. According to the victim, the abuse stopped in 2004, during the summer before the victim entered fifth grade, after she twice threatened to call the police.

The victim testified that the first time she told anyone that defendant had molested her was about three years after the abuse stopped, when she disclosed to three friends. The victim next disclosed the abuse to her school counselor in February 2011. Defense counsel elicited from the victim that she told the school counselor about the prior abuse because she was having nightmares and her grades were dropping and that, two months before the disclosure, the victim wrote in a journal she kept for her English class that she heard “voices in my head [that] tell me to do bad things,” including hurting herself. At another sidebar addressing the permissible scope of cross-examination on the journal, counsel argued that the victim’s statement in the journal went “right back to the heart of our case[,] . . . [t]his is a troubled young lady.”

The school counselor testified that the victim revealed that “somebody was touching her when she was young . . . [o]n her breast and vagina. She also shared that she was in certain bedrooms and oral sex was performed on her.” The court twice instructed the jury during the school counselor’s recitation of the victim’s statements that the evidence was not admitted for its truth, but on the issue of outcry and the victim’s state of mind. Defense counsel elicited that the school counselor had been asked to meet with the victim due to “issues [the victim] was having in school” and to address the victim’s statements in her journal.

The detective who was assigned to the victim’s case testified that the victim told him that, from 1999 to 2004, she had, “on numerous occasions . . . been sexually abused in the nature ranging from being touched to being made to touch a man’s penis.” The detective further testified, without objection, that he spoke to one of the victim’s friends and confirmed that the victim had previously disclosed the abuse to the friend. During cross-examination, counsel asked the detective whether the victim gave him details about the abuse — which involved her being touched under her clothes but did not include her claim that defendant performed oral sex on her — and the detective answered “yes.”

In summation, counsel emphasized the victim’s statement in her journal that the voices in her head tell her to do bad things, which was written only two months before the victim’s disclosure to the counselor. He argued that it was not believable that the previous disclosure to friends was ever made, noting that the People failed to corroborate the disclosure by calling any of the victim’s friends and that the victim’s friends never told anyone else about the abuse. Counsel also urged the jury to focus on the length of the delay between the abuse and the first disclosure to an adult, as well as the problems in the victim’s life occurring at the time. Counsel argued that the journal was “proof of just how troubled this young lady really was at that time” and also pointed to numerous inconsistencies in the victim’s testimony.

During jury instructions, the court charged the jury with respect to prompt outcry, including that “[ejvidence that the complaining witness either made prompt disclosure ... or evidence that she failed to do so may be considered by you as bearing upon the witness’s credibility.” The jury found defendant guilty of first-degree course of sexual conduct against a child. The Appellate Division affirmed (133 AD3d 882 [2d Dept 2015]) and a Judge of this Court granted defendant leave to appeal (27 NY3d 965 [2016]).

II.

As recently explained in People v Gross,

“[o]n an ineffective assistance of counsel claim under the Sixth Amendment to the United States Constitution, a defendant must demonstrate that (1) his or her attorney committed errors so egregious that he or she did not function as counsel within the meaning of the United States Constitution, and (2) that counsel's deficient performance actually prejudiced the defendant” (26 NY3d 689, 693 [2016]).

In contrast, “New York’s constitutional requirement of effective assistance of counsel is met when ‘the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation’ ” (id., quoting People v Benevento, 91 NY2d 708, 712 [1998]). The difference between the federal and state standards is that “[o]ur state standard . . . offers greater protection than the federal test” because, “under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial” (People v Caban, 5 NY3d 143, 155-156 [2005]). Under both standards, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy” (Strickland v Washington, 466 US 668, 689 [1984] [internal quotation marks and citation omitted]). In other words, a defendant must “ ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings” (People v Henderson, 27 NY3d 509, 513 [2016], quoting Benevento, 91 NY2d at 712).

Here, defendant argues that counsel’s failure to object to the testimony regarding the victim’s disclosures must have arisen from his ignorance or misunderstanding of the law on prompt outcry testimony and, thus, cannot be considered a matter of strategy. We disagree. While “it is generally improper to introduce testimony that the witness had previously made prior consistent statements” to bolster the witness’s credibility, the use of prior consistent statements is permitted to demonstrate a prompt outcry, rebut a charge of recent fabrication, or “to assist in ‘explaining the investigative process and completing the narrative of events leading to the defendant’s arrest’ ” (Gross, 26 NY3d at 694-695, quoting People v Ludwig, 24 NY3d 221, 231 [2014]). Indeed, in People v Ludwig, “we acknowledged that New York courts have routinely recognized that nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process” (Gross, 26 NY3d at 695, quoting Ludwig, 24 NY3d at 231 [internal quotation marks omitted]).

A conclusion that the fact of the victim’s disclosures herein to the school counselor and detective would likely be admissible to “complete the narrative” was “consistent with [a conclusion that] a reasonably competent attorney” could make (People v Oathout, 21 NY3d 127, 128 [2013] [internal quotation marks omitted]). That is, although defendant was convicted prior to our decisions in Ludwig and Gross, counsel was not ineffective for failure to make a motion that had little chance of success (see Caban, 5 NY3d at 152). Instead of objecting to that testimony, counsel strategically chose to use the evidence to defendant’s advantage by exploring the substance of, and the circumstances surrounding, the disclosure in depth to support the defense of recent fabrication. Moreover, while it is undisputed that the elicitation on cross-examination of testimony regarding the victim’s troubled mental state at the time she disclosed the abuse to the school counselor essentially introduced a “motive to fabricate” and thereby opened the door to admission of the previous disclosure to her friends (see People v Rosario, 17 NY3d 501, 513 [2011]), counsel argued to the jury that they should not believe that the earlier disclosure ever occurred for various reasons. Further, in cross-examination of the victim about the three-year disclosure, and of the school counselor and detective about the seven-year disclosure, counsel was able to demonstrate inconsistencies in the disclosures.

Counsel’s strategy — in support of his recent fabrication defense — of using the evidence surrounding the disclosures and the inconsistencies between the victim’s various statements was evident beginning with voir dire and consistently followed throughout trial. That counsel’s strategy was ultimately unsuccessful does not alter our analysis because, as this Court has repeatedly stated, “a reviewing court must avoid confusing ‘true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis’ “counsel’s efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective” (People v Benevento, 91 NY2d at 712, quoting People v Baldi, 54 NY2d 137, 146 [1981]).

On this record, where the victim’s credibility was the primary issue at trial, and given that “[t]he test is reasonable competence, not perfect representation” (People v Pavone, 26 NY3d 629, 647 [2015] [internal quotation marks and citation omitted]), defendant has not established that counsel was ineffective. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Rivera, Fahey, Garcia and Wilson concur.

Order affirmed.

      . The expert did so testify.

      . Upon hearing this, the counselor contacted family services, the police and the victim’s mother.


source: Caselaw Access Project

author: Chief Judge DiFiore.

license: Public Domain

text:
    [78 NE3d 1172, 56 NYS3d 488]
    D&R Global Selections, S.L., Appellant, v Bodega Olegario Falcon Pineiro, Respondent.
    Argued May 2, 2017;
    decided June 8, 2017

      POINTS OF COUNSEL

      Zara Law Offices, New York City {Robert M. Zara of counsel), for appellant.

      Gleason & Koatz, LLP, New York City {John P. Gleason and Kal Qubain of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

The issue on appeal is whether there is personal jurisdiction over defendant, a Spanish winery, under New York’s long-arm jurisdiction statute, and consequently subject matter jurisdiction over the parties’ dispute under Business Corporation Law § 1314 (b) (4). Because we conclude that plaintiff’s claim arises from defendant’s transaction of business in New York within the meaning of CPLR 302 (a) (1), the Appellate Division order granting summary judgment to defendant for lack of personal and subject matter jurisdiction should be reversed.

I.

Defendant Bodega Olegario Falcon Pineiro is a winery located in Pontevedra, Spain. In March 2005, defendant entered into an oral agreement there with plaintiff D&R Global Selections, S.L., a Spanish limited liability company also based in Pontevedra. Neither plaintiff nor defendant has offices or a permanent presence in New York. Pursuant to their oral agreement, plaintiff agreed to locate a distributor to import defendant’s wine into the United States; in return, defendant agreed to pay commissions to plaintiff at a specified rate on wine sales made to that distributor.

Following the agreement, defendant accompanied plaintiff to New York several times to meet potential distributors and promote defendant’s wine. In May 2005, defendant attended the Great Match event in New York, which showcased wines from Spanish vineyards. At that event, plaintiff introduced defendant to Kobrand Corp., a wine importer and distributor located in New York. Defendant began selling wine to Kobrand in November 2005. In January 2006, defendant accompanied plaintiff to two events in New York that promoted Kobrand’s Spanish wine portfolio, including defendant’s wine. Defendant subsequently entered into an exclusive distribution agreement with Kobrand. Through November 2006, defendant paid commissions to plaintiff in Spain on wine defendant sold to Ko-brand. In or around January 2007, defendant stopped paying commissions to plaintiff even as defendant continued to sell wine to Kobrand. Defendant contends that its obligation-to pay commissions under the oral agreement expired after one year.

In November 2007, plaintiff sued defendant in Supreme Court for unpaid commissions. The complaint asserted causes of action for breach of contract, quantum meruit, unjust enrichment, and an accounting. Plaintiff alleged that defendant’s obligation to pay commissions on wine sold to Kobrand did not terminate after a year but rather continued as long as defendant sold wine to Kobrand. Defendant did not answer the complaint or otherwise appear and, in June 2008, plaintiff obtained a default judgment.

Defendant subsequently moved to vacate the default judgment and dismiss the action for lack of personal and subject matter jurisdiction. Supreme Court denied the motion to vacate and therefore did not consider the motion to dismiss. The Appellate Division reversed, vacated the default judgment, and held that whether the court had personal jurisdiction over defendant under CPLR 302 (a) (1) of New York’s long-arm jurisdiction statute raised an issue of fact (90 AD3d 403, 405-406 [1st Dept 2011]).

On remand, defendant moved for summary judgment based on lack of personal and subject matter jurisdiction. Supreme Court denied the motion, citing the Appellate Division order. Defendant again appealed and the Appellate Division reversed. This time the Appellate Division held that defendant was not subject to personal jurisdiction under CPLR 302 (a) (1). The Appellate Division held that “defendant’s visits to New York to promote its wine constitute the transaction of business here,” but concluded that “there is no substantial nexus between plaintiff’s claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities” (128 AD3d 486, 487 [1st Dept 2015]). This Court granted plaintiff leave to appeal (26 NY3d 914 [2015]).

II.

CPLR 302 (a) (1) provides, in relevant part:

“As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . .
“transacts any business within the state or contracts anywhere to supply goods or services in the state.”

This rule provides two distinct grounds for long-arm jurisdiction: where a defendant “transacts any business” in the state and where a defendant “contracts anywhere to supply goods or services” in the state. Under either ground, we conduct a twofold jurisdictional inquiry (see Rushaid v Pictet & Cie, 28 NY3d 316, 323 [2016]). First, the defendant must have purposefully availed itself of “the privilege of conducting activities within the forum State” by either transacting business in New York or contracting to supply goods or services in New York (id.). Second, the claim must arise from that business transaction or from the contract to supply goods or services (id.).

We conclude that Supreme Court has personal jurisdiction over defendant under CPLR 302 (a) (l)’s “transacts any business” ground. Like the Appellate Division, we hold that defendant transacted business in New York. However,, contrary to the Appellate Division, we hold further that plaintiff’s claim arises from defendant’s transaction of business in New York. Accordingly, there is personal jurisdiction over defendant, and hence subject matter jurisdiction over the parties’ dispute under Business Corporation Law § 1314 (b) (4).

A,

CPLR 302 (a) (1) requires us to first determine if defendant purposefully availed itself of “the privilege of conducting activities” in the state by transacting business in New York. A non-domiciliary defendant transacts business in New York when “on his or her own initiative[,] the non-domiciliary projects himself or herself into this state to engage in a sustained and substantial transaction of business” (Paterno v Laser Spine Inst., 24 NY3d 370, 377 [2014] [citations, internal quotation marks and alterations omitted]). The primary consideration is the quality of the non-domiciliary’s New York contacts (see Fischbarg v Doucet, 9 NY3d 375, 380 [2007]). As relevant here, purposeful availment occurs when the non-domiciliary “seeks out and initiates contact with New York, solicits business in New York, and establishes a continuing relationship” (Paterno, 24 NY3d at 377).

The Appellate Division properly determined that defendant transacted business in New York. The oral agreement between the parties required plaintiff to locate a United States distributor to import defendant’s wine. In furtherance of their agreement, defendant accompanied plaintiff to New York several times between May 2005 and January 2006 to attend wine industry events. Plaintiff introduced defendant to Kobrand, a New York-based distributor, at the Great Match event in New York, and defendant returned to New York at least twice to promote its wine alongside plaintiff and Kobrand. Defendant eventually entered into an exclusive distribution agreement with Kobrand for the importation of its wine into the United States.

Thus, not only was defendant physically present in New York on several occasions, but its activities here resulted in “ The purposeful creation of a continuing relationship with a New York corporation’ ” (Fischbarg, 9 NY3d at 381, quoting George Reiner & Co. v Schwartz, 41 NY2d 648, 653 [1977]). Defendant’s contacts with New York establish that defendant purposefully availed itself of “the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws” (Rushaid, 28 NY3d at 323 [citation and internal quotation marks omitted]; see also Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 457-458 [1965]).

B.

It is not enough that a non-domiciliary defendant transact business in New York to confer long-arm jurisdiction. In addition, the plaintiff’s cause of action must have an “articulable nexus” or “substantial relationship” with the defendant’s transaction of business here (Licci v Lebanese Can. Bank, SAL, 20 NY3d 327, 339 [2012]). At the very least, there must be “a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim” (id. at 339). This inquiry is “relatively permissive” and an articulable nexus or substantial relationship exists “where at least one element arises from the New York contacts” rather than “every element of the cause of action pleaded” (id. at 339, 341). The nexus is insufficient where the relationship between the claim and transaction is “too attenuated” or “merely coincidental” (Johnson v Ward, 4 NY3d 516, 520 [2005]).

Plaintiff asserts that defendant breached the parties’ oral agreement by not paying commissions on wine sales to Ko-brand. To prevail on this claim, plaintiff must show that defendant failed to pay commissions due on sales to a distributor that plaintiff identified and solicited for defendant. Plaintiff’s claim has a substantial relationship to defendant’s business activities in New York. Defendant traveled to New York to attend the Great Match event where plaintiff introduced defendant to Kobrand. Defendant then joined plaintiff in attending two promotional events hosted by Kobrand in New York, which resulted in Kobrand purchasing defendant’s wine and, eventually, entering an exclusive distribution agreement for defendant’s wine in the United States. Those sales to Kobrand — and the unpaid commissions thereon — are at the heart of plaintiff’s claim.

Indeed, contrary to the Appellate Division’s holding, the parties’ oral agreement was not performed “wholly in Spain” (128 AD3d at 487). Rather, as set forth above, both sides engaged in activities in New York in furtherance of their agreement. There is an articulable nexus or substantial relationship between defendant’s New York activities and the parties’ contract, defendant’s alleged breach thereof, and potential damages. Accordingly, we hold that plaintiff’s claim arises from defendant’s transaction of business in New York.

III.

Exercise of personal jurisdiction under CPLR 302 (a) (1) must also comport with federal due process (Rushaid, 28 NY3d at 330). We have recognized that CPLR 302 and due process are “not coextensive”; nonetheless, while “personal jurisdiction permitted under the long-arm statute may theoretically be prohibited under due process analysis, we would expect such cases to be rare” (id. at 331).

Federal due process requires first that a defendant have “minimum contacts” with the forum state such that the defendant “ ‘should reasonably anticipate being haled into court there’ ” (LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 216 [2000], quoting World-Wide Volkswagen Corp. v Woodson, 444 US 286, 297 [1980]), and second, that the prospect of having to defend a suit in New York comports with “ ‘traditional notions of fair play and substantial justice’ ” (LaMarca, 95 NY2d at 216, quoting International Shoe Co. v Washington, 326 US 310, 316 [1945]).

Under the first element, defendant has established minimum contacts with New York by visiting the state on multiple occasions to promote its wine with the purpose of finding a United States distributor and thereafter selling wine to a New York-based distributor. As in LaMarca, defendant availed itself of the privilege of doing business in New York by taking “purposeful action, motivated by the entirely understandable wish to sell its products here” (95 NY2d at 217). Having done so, defendant could reasonably foresee having to defend a lawsuit in New York.

The second element, in essence, asks whether personal jurisdiction “is reasonable under the circumstances of the particular case” (Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 305 F3d 120, 129 [2d Cir 2002] [citations and internal quotation marks omitted]; see also LaMarca, 95 NY2d at 217). Where minimum contacts exist, the defendant has the burden to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable” (LaMarca, 95 NY2d at 217-218 [citation and internal quotation marks omitted]). On appeal, defendant has not presented any compelling reason why the exercise of jurisdiction is unreasonable (cf. id. at 218 [listing five reasonableness factors]). Rather, defendant availed itself of the privilege of conducting business in New York by promoting its wine here, soliciting a distributor here, and selling wine to that New York-based distributor. Therefore, the exercise of long-arm jurisdiction over defendant comports with federal due process.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judgment denied.

Judges Rivera, Stein, Fahey, Garcia and Wilson concur.

Order reversed, with costs, and defendant’s motion for summary judgment dismissing the complaint denied.

       Because we hold that defendant is subject to jurisdiction under the “transacts any business” ground of CPLR 302 (a) (1), we do not reach whether the “contracts anywhere to supply goods or services” ground provides an additional basis for jurisdiction.


text:
    [78 NE3d 1178, 56 NYS3d 494]
    The People of the State of New York, Respondent, v Darrell Spencer, Appellant.
    Argued May 30, 2017;
    decided June 22, 2017

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Susan H. Salomon of counsel), for appellant.

      Dar cel D. Clark, District Attorney, Bronx (Eric C. Washer and Nancy D. Killian of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

The issue presented on this appeal is whether the trial court erred, after its inquiry pursuant to People v Buford (69 NY2d 290 [1987]), in failing to discharge a sworn juror who, on the fourth day of deliberations, repeatedly stated that she could not “separate [her] emotions from the case” and “[did not] have it in [her]” to decide the case on the facts and the law. We hold, under the unique circumstances presented here — where the juror repeatedly and unambiguously responded that she was unable to render an impartial verdict based solely on the evidence and the law — that the trial court erred in failing to discharge the juror as “grossly unqualified to serve” pursuant to CPL 270.35 (1). Accordingly, defendant is entitled to a new trial and the order of the Appellate Division should be reversed.

I.

Defendant was indicted for intentionally murdering the victim by stabbing her 38 times. On the fourth day of deliberations, juror number one called the court clerk and “asked what she needed to do . . .to get excused.” The trial judge conducted an extensive inquiry of the juror in the presence of the attorneys and defendant during which the juror repeatedly stated that she was unable to discharge her duty. The following exchange took place:

“THE COURT: Could you tell us what’s going on?
“THE JUROR: I’m not sure that I’m able to separate my emotions from the case so I just wanted to—
“THE COURT: Well, I mean, you have to do that. You have to separate yoúr emotions. You’re a member of a jury of 12 people. As I said, this has to be decided. And you promised that you will be able to do so. It has to be decided on the evidence and the law as you find it to be. And I know it’s difficult to be a juror but that’s, you know — I mean we’ve all put a lot of time, a lot of effort, and there’s no way that we can go forward without you.
“THE JUROR: Well I do understand. I feel — I thought I would be able to but it is my duty to let you know that I haven’t been able to.
“THE COURT: Well, I mean, it’s something. We can’t go forward and there’s no way we can excuse you. We can’t go forward without you, we just can’t.
“THE JUROR: So is it just that I make a decision based on my emotions just to get it out of the way?
“THE COURT: No, no I wouldn’t ask you to make a decision based on your emotions. I would ask you to do — look we’re all the product of who we are and we bring our life experience to whatever we do. But what you need to do is put aside, to the extent that you can, your emotion and make a decision.
“Speak to your fellow jurors; discuss with your fellow jurors; listen to your fellow jurors; express your own views to your fellow jurors; and then, eventually, come to a decision as to the one issue here. As to whether or not the People have proven Mr. Spencer’s guilt beyond a reasonable doubt. I’m going to have to ask you to really try very hard to do that.
“THE JUROR: I honestly have been. And I don’t feel that we can.
“THE COURT: We have to continue with the trial. And, I mean, I can speak to you in the context of all your fellow jurors. What all of you need to do in terms of sharing. But there’s no new jury that’s going to be any better [at] doing this than you are.”

Despite the court’s efforts to impress upon the juror the gravity of her sworn duty to decide the case on the facts and the law, the juror did not change her mind. Again, she stated,

“THE JUROR: I don’t feel like I’m able to. I mean I’ve been trying extremely hard and I don’t feel that I can without — I can’t separate it[,] I thought that I could.”

The court continued to exhort the juror to fulfill her solemn duty; the juror, however, remained resolute that she was unable to do so:

“THE COURT: Well, I mean, whatever emotion — I mean you can decide the case here based on what you heard and saw in this courtroom, that’s what you need to do. I mean that’s what you need to do is to decide the facts as you see them and apply the law as I’ve said it to you, to those facts, and do that. And that’s your only concern. If you do that you’ve done your job.
“THE JUROR: But that’s what I have been trying to do and that’s why I’ve come to this conclusion that I can’t. I don’t have it in me.
“THE COURT: Well, you have to have it in you, that’s really what it comes down to. I don’t see — I mean you have to decide. You swore an oath to us to say that you will decide the case on the law and the evidence. And I’m going to ask you to really try very hard to do that.
“THE JUROR: I really did.
“THE COURT: Whatever way you feel the evidence is, and that’s your decision as to the evidence, I have nothing to do with that.
“THE JUROR: I can’t, I can’t separate it anymore. I don’t know, I don’t know. I don’t have the capabilities to. I’ve been trying and I can’t. That’s what I’m trying to tell you.
“THE COURT: I’m going to ask you to think about what I could do, in the context of sending me a note about questions that you have for all the jurors. In terms of the evidence, or my charge, or the law that can be, in any way, helpful for you surmounting this.
“THE JUROR: I don’t know what can be helpful.
“THE COURT: Well, then, you have to think about it.
“THE JUROR: I have.
“THE COURT: I understand that. Look if you think of a position that we’re in now — is everybody here? I mean this is a significant case and everybody here has a real interest in it being resolved. Your fellow jurors have an interest in it being resolved; the People of the State have an interest of it being resolved; obviously, Mr. Spencer has an interest of it being resolved, everybody does. And so I’m going to ask you to really do, you know, to decide the case. Figure out what you believe the facts are. And without fear or favor or bias or sympathy, once you decide the facts and apply the law, then you will decide whether or not Mr. Spencer is even guilty or not guilty.
“THE JUROR: So I’ve done all that[,] what do you suggest?
“THE COURT: What I suggest is that you go back over it some more with your fellow jurors[,] that’s what I suggest.
“THE JUROR: I don’t know that there’s anything else that’s going to change my heart, I can’t, I don’t know.
“THE COURT: Well I’m going to ask you to try[,] that’s what I’m going to do. I’m going to ask you to try. To go back over it with your fellow jurors and to try because that’s your job. And, you know — and that’s, I mean, I want you to keep—
“THE JUROR: I feel like I am. And I don’t feel like I can do that[,] that’s what I feel. Like it’s not like I came to this conclusion, I stepped in one minute and I came right back out. I feel like . . . [I’m] giving up my conscience. I did take an oath to do a certain job that I can’t do it[,] I can’t.
“THE COURT: But you can decide what the facts are can’t you?
“THE JUROR: Yes.
“THE COURT: And once you’ve done that, once you’ve decided the facts, then you have to apply the law as I give it to you[,] that you have to do.
“THE JUROR: All right. I mean I’m telling—
“THE COURT: I understand what you’re saying. But you’re capable of deciding, on your own, what the facts are. And once you do that, . . . then it’s your job to apply the law to the facts. And come to a decision based on the law and the facts and that’s what you promised to do. And the rest of it just has to be put to the side. So I’m going to ask you to try to do that. You just wait for one moment.”

The court excused the juror from the courtroom and defense counsel moved for a mistrial — as the alternate jurors had already been dismissed — arguing that juror number one was “no longer qualified to be a juror in this case.” The prosecutor tried “thinking of anything else that could possibly . . . open her mind” but offered no new approach. The court brought the jury back into the courtroom and instructed them “to continue to apply the law to the facts . . . without fear or favor or bias or sympathy” and “to return to the jury room and resume your deliberations.” Juror number one replied, “I have no choice.”

Having completed its Buford inquiry, the court speculated “that this juror, at this stage, is the sole hold [out] in this case,” and stated “that [juror number one] has determined what the facts are but for whatever reason up to now feels, notwithstanding what she had sworn to do, that she can’t say guilty.” The court told defendant to consider the reduced plea offer to manslaughter, as it was the court’s “judgment based on what [juror number one] said that she has evaluated that and has decided that you are, in fact, guilty.” Notably, the court, referencing its 45 years of experience, acknowledged the rarity of the juror’s state of mind, stating, “I [have] never heard a juror say what this juror said which, essentially I believe is, I decided the facts but I can’t do what the law requires me to do.”

After the lunch recess, the jury sent out a note that it had reached a verdict. Defendant was acquitted of murder in the second degree and was convicted of manslaughter in the first degree. The Appellate Division, with one Justice dissenting, affirmed (135 AD3d 608 [1st Dept 2016]). The dissenting Justice granted defendant leave to appeal.

II.

The constitutional right of a criminal defendant to a fair trial includes . . . the right to an impartial jury” (People v Rodriguez, 71 NY2d 214, 218 [1988]), and there are several safeguards in place to protect that right. One statutory safeguard includes “a mechanism for a juror to be dismissed during the trial or during deliberations” (id., citing CPL 270.35).

Pursuant to CPL 270.35 (1),

“[i]f at any time after the trial jury has been sworn and before the rendition of its verdict. . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . the court must discharge such juror. . . . If no alternate juror is available, the court must declare a mistrial.”

As explained in People v Buford, a juror is grossly unqualified “only ‘when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict’ ” (69 NY2d at 298 [citation omitted and emphasis added]).

The “grossly unqualified” standard for the removal of a sworn juror upon a record of an obviously partial state of mind is higher than that required for the removal of a prospective juror (see Buford, 69 NY2d at 298). Pursuant to CPL 270.20, a prospective juror may be excused for cause if the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20 [1] [b] [emphasis added]) and, therefore, “a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” (People v Warrington, 28 NY3d 1116, 1119-1120 [2016] [internal quotation marks and citations omitted]). Conversely, CPL 270.35 (1) “places a greater burden upon the moving party than if the [prospective] juror was challenged for cause,” and the record must convincingly demonstrate that the sworn juror cannot render an impartial verdict for him or her to be disqualified (Buford, 69 NY2d at 298 [citations and internal quotation marks omitted]).

A “Trial Judge generally is accorded latitude in making the findings necessary to determine whether a juror is grossly unqualified under CPL 270.35, because that Judge is in the best position to assess partiality in an allegedly biased juror” (Rodriguez, 71 NY2d at 219). However, “[w]hether a seated juror is grossly unqualified to serve is a legal determination” (People v Harris, 99 NY2d 202, 212 [2002]).

“[E]ach case must be evaluated on its unique facts to determine whether a particular juror must be disqualified under CPL 270.35” (Buford, 69 NY2d at 299). To that end, the trial court

“[i]n a probing and tactful inquiry . . . should evaluate the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case .... [and] should carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations” (Buford, 69 NY2d at 299).

We have cautioned that it would be “unnecessary and indeed inappropriate to subject [a] juror to questions relating to her thought processes, the deliberations or other matters that lie within the confines of the jury room” (People v Sanchez, 99 NY2d 622, 623-624 [2003]). Further inquiry was not necessary in this case as the court’s inquiry was sufficiently probing to provide an ample record to determine whether the juror at issue was grossly unqualified.

In People v Rodriguez, this Court held that a juror was “grossly unqualified to serve” where the “juror’s statements made it plain that she possess [ed] a state of mind which would prevent the rendering of an impartial verdict” (71 NY2d at 221 [internal quotation marks omitted], quoting Buford, 69 NY2d at 298). Here, juror number one made it plain that she could not render such a verdict even though she did not state that she suffered from any actual bias. We are not conflating a declaration of actual bias with a juror’s declaration of being emotional about the case, as a declaration regarding emotions alone does not render a juror grossly unqualified. Moreover, neither the constitutional right to a trial by an impartial jury, nor the controlling statute, nor our case law requires a statement of actual bias for a sworn juror to be grossly unqualified. As the Supreme Court has explained, “[d]ue process means a jury capable and willing to decide the case solely on the evidence before it” (Smith v Phillips, 455 US 209, 217 [1982])— something this juror repeatedly informed the court that she was incapable of doing.

Under these circumstances, the record reveals that it was obvious the juror possessed a state of mind preventing her from rendering an impartial verdict and thus, she was “grossly unqualified to serve.” The juror declared forthrightly that she could not separate her emotions from her ability to deliberate and was incapable of fulfilling her sworn duty to reach a verdict based solely on the evidence presented at trial and the law. Compelling the juror to resume deliberations could not cure the fundamental problem with her state of mind. The trial court’s implicit conclusion that the juror did not “possess [ ] a state of mind which would prevent the rendering of an impartial verdict” (Buford, 69 NY2d at 298 [citation and internal quotation marks omitted]) was erroneous.

We have recognized that “there are no ‘perfect’ trials” and “no ‘perfect’juries” (People v Arnold, 96 NY2d 358, 362 [2001]). “While the goal is utter impartiality, each juror inevitably brings to the jury room a lifetime of experience that will necessarily inform her assessment of the witnesses and the evidence” (id.). Emotions are natural human responses and the law does not expect jurors to be devoid of such feelings; however, jurors must have the capacity and the will to decide the case based solely on the facts as they find them and the applicable law as instructed by the court.

Here, as the court acknowledged on the record, the sworn juror at issue — a juror who the court believed had stated that she could not “do what the law require [d] [her] to do” — was incapable of rendering an impartial verdict as required by her oath as a sworn juror and, therefore, CPL 270.35 (1) mandated her discharge.

III.

Regarding defendant’s pretrial motion to suppress evidence, we reject defendant’s argument that his warrantless arrest violated Payton v New York (445 US 573 [1980]). There is record support for the determination of the courts below that defendant voluntarily exited his home, whereupon he was arrested (see e.g. People v Minley, 68 NY2d 952 [1986]; People v Reynoso, 2 NY3d 820 [2004]). As a result, the issue is beyond our further review (see e.g. People v Gilford, 16 NY3d 864, 868 [2011]).

Because the failure to discharge juror number one pursuant to CPL 270.35 (1) mandates a reversal of defendant’s conviction and a new trial, we need not address defendant’s remaining contention.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Judges Rivera., Stein, Fahey, Garcia and Wilson concur; Judge Feinman taking no part.

Order reversed and a new trial ordered.

      . There was nothing elicited from juror number one as a prospective juror during voir dire to portend that she would be incapable of deciding the case solely on the facts and the law.

      . Because the trial court’s inquiry was extensive and demonstrated the error in failing to discharge juror number one pursuant to the statutory mandate of CPL 270.35 (1), the People’s argument regarding defendant’s lack of preservation as to whether the trial court’s inquiry was “probing and tactful” is irrelevant. The argument on appeal to this Court — that the trial court erred in failing to discharge juror number one as no longer qualified to serve — is clearly preserved; defense counsel immediately moved for a mistrial after the Buford inquiry and argued that the “juror [was] no longer qualified to be a juror in this case.”