This is a criminal case where a Motion was filed by the defendant for a change of venue of his trial from Queens County to another county to be designated by the court.
A Queens County Gun Crime attorney said that in February 1988, a police Officer was shot to death while he sat in his patrol car in Jamaica, Queens, guarding the home of a witness in a drug case. It is the theory of the prosecution that the Officer was executed on orders of a reputed drug kingpin in retaliation for the latter’s arrest, conviction and imprisonment on gun possession charges. Four individuals were charged with murder in the second degree as a result of this crime, three codefendants, who were previously tried and convicted and the defendant.
The killing of the Officer has been the subject of pervasive and, at times, highly emotional media coverage. News coverage intensified during the recent month-long trial of the codefendants, culminating in their conviction in March 1989. The killing of the Officer has also been the subject of much editorial comment decrying the brazen violence employed by those immersed in drug trafficking.
The defendant contends that the effect of the extensive publicity surrounding the death of the Officer and the prosecution of the codefendants makes it impossible for him to receive a fair and impartial trial in Queens County and therefore a change of venue is required.
The Court disagreed.
The defendant has not established “reasonable cause to believe that a fair and impartial trial cannot be had”. As the defendant readily admits, this court has never adopted a “bright-line test whereby a fixed percentage of veniremen expressing a preconceived opinion, standing alone, requires a change of venue”. Rather, the Court must look at the totality of the circumstances. “Pretrial publicity, even if pervasive and concentrated, does not necessarily lead to an unfair trial”. As the United States Supreme Court recognized in a celebrated case: “It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”
More than half of the jurors summoned and available, and, of course, all of the seated jurors have indicated that despite any prior knowledge they can fairly judge the defendant on the evidence to be presented. The defendant does not complain that the jurors have been exposed to prejudicial material or evidence which would be inadmissible upon his trial or that the Trial Judge has exhibited any bias against him. On the record before the Court we see no basis upon which to conclude that the defendant cannot receive a fair and impartial trial in Queens County.
Following the completion of jury selection at his bank fraud trial on the Indictment, the defendant has moved pursuant to CPL 230.20(2) for a change of venue. The defendant claims that he cannot obtain a fair and impartial trial in Queens County on charges arising out of the murder of the New York City Police Officer. The People oppose the application.
The Court concluded, based upon the papers submitted by both sides, that the defendant has failed to demonstrate that he cannot obtain a fair and impartial trial by reason of pretrial publicity.
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