People v. Cahill (2 N.Y. 14, 2003)

OPINION OF THE COURT

Rosenblatt, J.

Under New York’s capital punishment scheme, a person who commits an intentional (second degree) murder is eligible for a death sentence if any one of 13 aggravating factors is proved (see Penal Law § 125.27 [1] [a] [i]-[xiii]), and if within 120 days after arraignment the prosecution files a notice of intention to seek the death penalty (CPL 250.40 [2]). In the case before us, a jury found defendant guilty of two counts of first degree murder, based on two aggravating factors (witness elimination murder, Penal Law § 125.27 [1] [a] [v], and intentional murder in the course of and in furtherance of second degree burglary, Penal Law § 125.27 [1] [a] [vii]). At the penalty phase of the trial, the jury determined that defendant should be sentenced to death on both counts. For reasons that follow, we conclude that neither of the aggravating factors was proved. This being so, the penalty phase was conducted without legal foundation and the resulting death sentences must be vacated. Defendant’s guilt for intentional murder, however, was proved beyond a reasonable doubt, and we therefore reduce defendant’s conviction to murder in the second degree and remit the case to the trial court for resentencing.

In early April 1998, defendant and his wife, Jill, signed a separation agreement but continued to live under the same roof at their home in Spafford, Onondaga County. On April 21, during a predawn heated argument, defendant struck. Jill repeatedly on the head with a baseball bat. The couple’s two young children were nearby and Jill called out, urging them to call the police because their father was trying to kill her. After the attack, defendant phoned his parents for help. They soon arrived at the Cahill residence, along with defendant’s brother and a family friend who was a physician. Having been summoned to the scene, the police found Jill lying on the kitchen floor. She was covered in blood, writhing in pain and moaning incoherently. Her left temple was indented from the injury.

Defendant and victim were taken to different hospitals. After hospital personnel treated defendant for minor injuries, the police brought him to the station house for questioning. At first, he stated that Jill had instigated the argument and attacked him with a knife, causing some cuts and scratches on his body. He claimed he struck her in self-defense. Defendant later admitted that he struck Jill with the bat when she was unarmed and that he cut himself, making it look like self-defense. Defendant added that after the assault, he taped a length of garden hose to the tailpipe of his car in order to poison himself with carbon monoxide, but decided against suicide when he saw a rosary in his vehicle.

In June 1998, a grand jury indicted defendant for assault in the first degree and criminal possession of a weapon in the fourth degree. In the months that followed, he and his attorney prepared for trial. In the meantime, there were custody proceedings in Onondaga Family Court, which placed the children with their maternal grandparents and aunt. In addition, Family Court and Onondaga County Court issued orders of protection prohibiting defendant from seeing his children or entering University Hospital, where Jill was confined.

By one medical estimate, Jill had been hit at least four times in the skull. At the hospital, she underwent emergency surgery to remove a blood clot from her brain. In the ensuing weeks, Jill suffered from brain swelling and a number of life-threatening infections. She began to improve and eventually moved from intensive care to the coma rehabilitation unit, and later to the general rehabilitation unit. Her recovery was slow and by no means complete. By October of 1998—six months after the assault—Jill was able to recall the names of her children and had regained some ability to speak, but could use only short, simple words.

On October 27, 1998, after the hospital was closed to visitors, defendant entered the premises, in disguise. According to several members of the staff, defendant wore a wig and glasses, posing as a maintenance worker, complete with a mop and falsified name tag. Shortly after 10:00 p.m., a nurse detected a strong odor in the room and saw Jill having trouble breathing. The nurse also observed a waxy-looking substance on Jill’s chest and that Jill’s hospital gown caused a burning sensation when touched. Despite efforts to revive her, Jill died the next morning. She had been poisoned. Am autopsy revealed that potassium cyanide was administered through her mouth or feeding tube.

Police promptly arrested defendant for Jill’s murder. Employing search warrants, they recovered data from the hard drive of the Cahill home computer revealing Internet searches that used the words “cyanide” and “ordering potassium cyanide.” The “slack” also yielded letters composed on the computer. The letters were purportedly sent from an East Syracuse company called General Super Plating to Bryant Laboratories, placing orders for potassium cyanide. In the area near the shed on the Cahill property police found a half-burned wig and a bottle containing potassium cyanide. Further investigation produced eyewitnesses who saw defendant intercept the delivery of cyanide in the vicinity of General Super Plating in July of 1998.

On November 19, 1998, while the assault charges were pending, a grand jury indicted defendant on two counts of first degree murder and related offenses. One murder count charged defendant with having murdered Jill to prevent her from testifying against him at his trial for the April 1998 assault (Penal Law § 125.27 [1] [a] [v]), the other with intentionally murdering Jill in the course of and in furtherance of a burglary (Penal Law § 125.27 [1] [a] [vii]). The grand jury also indicted defendant on two counts of murder in the second degree, burglary in the second degree, aggravated criminal contempt and criminal possession of a weapon in the fourth degree. On December 30, 1998, the District Attorney filed a CPL 250.40 (2) notice of intention to seek the death penalty. In addition, the prosecution moved to consolidate the murder and assault indictments. The trial court granted the motion in January 1999.

Pursuant to CPL 400.27, the court conducted the jury trial in two phases. In the first phase, the jury found defendant guilty of both counts of first degree murder, first degree assault (based on the April 1998 beating) and related charges. The penalty phase followed, in which the jury returned with verdicts of death under both first degree murder counts. Pursuant to article VI, § 3 (b) of the State Constitution and CPL 450.70 (1), defendant has appealed directly to our Court.

Although we address several of the 38 points briefed by defendant, our determination turns on three primary issues: jury selection, weight of the evidence supporting first degree (witness elimination) murder under Penal Law § 125.27 (1) (a) (v) and legal sufficiency of first degree murder (based on burglary) under Penal Law § 125.27 (1) (a) (vii). We conclude that the trial court erred in its rulings concerning potential jurors Nos. 23 and 855; that the first degree murder conviction based on witness elimination was against the weight of the evidence; and that the first degree murder conviction premised on burglary was legally insufficient to support a conviction.

I. Pretrial Issues

A. Pretrial Publicity

Defendant argues that extensive, prejudicial pretrial publicity denied him a fair trial before an impartial jury. He contends that the adverse publicity warranted a change of venue, either before or during voir dire. We disagree.

CPL 230.20 authorizes a change of venue when either party shows “reasonable cause to believe that a fair and impartial trial cannot be had in such county” (CPL 230.20 [2]). A motion for change of venue must be made before the Appellate Division department embracing the county in which the superior court is located. In the exercise of its discretion, the Appellate Division can order removal to the superior court of another county (CPL 230.20 [2] [a]) or direct the commissioner of jurors (in consultation with the administrative judge of the judicial district in which the county is located) to expand the jury pool to include people from jury lists of geographically contiguous counties within the judicial district (CPL 230.20 [2] [b]).

It is imperative that prospective jurors be open-minded and unbiased, but they need not “be totally ignorant of the facts and issues involved” (Irvin v Dowd, 366 US 717, 722 [1961]). As recognized in Irvin, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court” (id. at 723). The Supreme Court has identified a number of conditions that may justify a change of venue, such as televised confessions (see Rideau v Louisiana, 373 US 723 [1963]), a media-generated “carnival atmosphere” in the courtroom (Sheppard v Maxwell, 384 US 333, 358 [1966]), or a close temporal proximity between the media coverage and the jury selection (see Patton v Yount, 467 US 1025,1032 [1984]).

Disinclined to presume prejudice, our courts have rarely granted motions for change of venue before jury selection. To succeed, a party must show not only extensive publicity and comment but also that media coverage has aroused “a deep and abiding resentment” in the county (People v Boudin, 90 AD2d 253, 259 [2d Dept 1982]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, CPL 230.20, at 311). Here, the Appellate Division denied defendant’s pre-voir dire motion for a change of venue, stating that if during voir dire a fair and impartial jury could not be drawn, the defense could renew the motion (261 AD2d 972 [4th Dept 1999]). Defendant did so after jury selection, arguing that the voir dire revealed a level of prejudice that infected the jury pool. The Appellate Division denied that motion as well.

This case did not warrant a pre-voir dire change in venue. Onondaga County was not “deluged by a tidal wave of prejudicial publicity to such an extent that even an attempt to select an unbiased jury would be fruitless” (Boss, 261 AD2d at 4). Thus, the Appellate Division properly denied defendant’s first CPL 230.20 motion. Following the denial of a change of venue motion on the ground of prematurity, the proper procedure is to undertake voir dire and attempt to select an impartial jury (People v Parker, 60 NY2d 714, 715 [1983]; People v Smith, 63 NY2d 41, 69 [1984]). The trial court did so here, and for the reasons that follow we conclude that the Appellate Division did not abuse its discretion in denying defendant’s post-voir dire motion.

This Court has several times addressed the problem of pretrial publicity in first degree murder cases. In People v DiPiazza (24 NY2d 342, 347 [1969]), we upheld the denial of a change of venue, finding it significant that defendant did not exhaust his peremptory challenges, but noting that “the court’s discretion will not be disturbed unless the newspaper articles are of such a sensational character as to excite local popular passion and prejudice so that the defendant will not be able to have the fair trial to which he is entitled.” In that case, however, the Herkimer County media coverage was “surprisingly objective” (id.). Moreover, less than 25% of the prospective jurors expressed an opinion as to DiPiazza’s guilt (id. at 346).

In People v Culhane (33 NY2d 90, 110 [1973]), an Ulster County case in which three prisoners killed a deputy sheriff, we observed that the highly localized and incessant nature of the prejudicial publicity surrounding the case “probably” warranted a change of venue. Nevertheless, we reversed the defendant’s conviction due to the bias of prospective jurors who did not make expurgatory oaths required under former Code of Criminal Procedure § 376 (2). In People v Lynch (23 NY2d 262, 272 [1968]), this Court affirmed the denial of defendant’s motion for change of venue where voir dire resulted in selection of a jury free of media influence.

This case generated a good deal of pretrial publicity in Onondaga County. According to the juror questionnaires, 86% of the prospective jurors had heard of the case from media accounts (including 8 of the 12 jurors). The test for removal, however, is not based on the number of prospective jurors who heard of the case. If that were the test, juries in highly publicized cases would necessarily consist only of the most reclusive and uninformed segment of the population. What counts is not knowledge of the accusation, but whether that knowledge has shaped the jurors’ attitudes and predispositions. Merely having heard of the case is not enough, if the jurors come into the courtroom knowing no more than they learn when they are told of the charge in open court. The question is whether media or other accounts have been so inflammatory as to thwart the selection of a fair-minded jury.

A review of the media coverage in this case shows that the publicity was not so sensational or prejudicial as to taint the jury pool. Most of the media coverage tended to be objective, including “police blotter” reports and news reports on the court proceedings. The publicity was similar to that in DiPiazza, in which we upheld the denial of a change in venue: “The victim’s funeral and the members of her family were sympathetically portrayed and the defendant’s action was described as having caused a widespread reaction and aroused deep feeling. But there was very little that could be said to be affirmatively hostile to him” (id. at 347). Here, although 52% of the jurors came to court with an opinion as to defendant’s guilt or innocence, the voir dire successfully culled out jurors who may have been biased by pretrial publicity. Thus, we hold that, in denying defendant’s motions, the Appellate Division acted within its discretion.

B, Search Warrant

Police found a container of potassium cyanide in a hollow space of a cinder block on the exterior base of the shed on defendant’s property. Defendant argues that the warrant referred only to his house and that the police conducted an impermissible search of the shed. Contrary to defendant’s contention, the search warrant authorized a search of the shed.

When conducting searches, search warrants are preferred, because they contemplate an orderly procedure and authorization by a neutral and detached magistrate (see United States v Jeffers, 342 US 48 [1951]; Johnson v United States, 333 US 10 [1948]). For that reason, reviewing courts should accord the process proper deference and not defeat search warrants (or discourage law enforcement officials from seeking them) by imposing overly technical requirements or interpreting them incompatibly with common sense (see United States v Ventresca, 380 US 102, 108 [1965]). Thus, a court may review the supporting documents to clarify any ambiguity (see People v De Lago, 16 NY2d 289, 290-291 [1965]). Also, and especially relevant here, material previously submitted to a judge may be incorporated by reference in a subsequent warrant application “so long as the earlier information was given under oath, is either available to the Magistrate or sufficiently fresh in the Magistrate’s memory so that he or she can accurately assess it and it is available in a form which can be reviewed at a later date” (People v Tambe, 71 NY2d 492, 502 [1988]).

The Fourth Amendment requires a search warrant to describe particularly the place to be searched (US Const Fourth Amend; see NY Const, art I, § 12), so that the right of privacy is protected from arbitrary police intrusion. To meet the particularity requirement, the warrant must be specific enough to leave no discretion to the police (see People v Brown, 96 NY2d 80, 84 [2001]).

Here, the particularity requirement has been met. The warrant that led to the seizure explicitly notes that it is an addendum to a warrant issued three days before, which included searches for “toxic/caustic materials” in defendant’s home or “within any unattached garages or storage sheds” (emphasis ours). Thus, the warrant incorporated previously submitted materials known to the issuing Judge, who, over four consecutive days, signed five search warrants related to this case (see Tambe, 71 NY2d at 502). The search was valid and the court properly denied suppression of the evidence.

C. Defendant’s Right to a Bench Trial

Defendant argues that he should have had the option of a bench trial to alleviate the alleged prejudicial effects of pretrial publicity and consolidation of the murder and assault indictments. His argument fails. As noted, we find no prejudicial impact from the pretrial publicity, nor did any result from consolidation of the indictments. Moreover, “[t]he history of our jurisprudence reveals that the fundamental right is the right to a trial by jury” (People ex rel. Rohrlich v Follette, 20 NY2d 297, 301 [1967] [emphasis in original]). This tenet is reflected in article I, § 2 of the New York State Constitution, which prohibits waivers of a jury trial in capital cases. Our State Constitution’s ban on jury waivers in capital cases is longstanding and purposeful.

Before 1938, no defendant in a criminal case was allowed to waive trial by jury (see People v Cosmo, 205 NY 91, 96 [1912]; Cancemi v People, 18 NY 128, 137 [1858]). The 1938 Constitution—our present Constitution—allows bench trials in criminal cases, but pointedly preserves the prohibition in capital cases (People v Page, 88 NY2d 1, 6 [1996]). The Bill of Rights Subcommittee to that Constitutional Convention drafted the provision, explaining that “its determination to withhold the jury waiver right from capital defendants derived from the notion ‘that the Constitution will still not permit this choice to a defendant in a capital case, and regards such a prohibition against waiver as a measure for the protection of the defendant.’ ”

Consistent with constitutional commands, CPL 320.10 excludes capital cases from the provisions that govern jury trial waivers. Moreover, there is no federal constitutional right to a bench trial (see Singer v United States, 380 US 24, 36 [1965]). Thus, defendant was not entitled to one (see also People v McIntosh, 173 Misc 2d 727 [Dutchess County Ct 1997]).

D. Consolidation of the Indictments

Defendant contends that the court should not have granted the prosecution’s motion to consolidate the assault and murder indictments for trial. He further asserts that after consolidation he had the right to plead guilty to the assault charges over the prosecution’s objection and proceed to trial on the murder charges only.

The trial court did not abuse its discretion in allowing consolidation (see People v Lane, 56 NY2d 1 [1982]). CPL 200.20 (2) (b) permits joinder of offenses based on different criminal transactions when “such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first.” The April 1998 assault and October 1998 murder of Jill Cahill fit this provision because the prosecution based one of its murder charges on Jill’s potential testimony in the assault trial, making proof of the assault relevant to the murder case. Thus, the offenses were joinable and consolidation was proper (see People v Bongarzone, 69 NY2d 892 [1987]).

We also reject defendant’s argument that he should have been allowed to plead guilty to only the assault portion of the consolidated indictment. From the time defendant was indicted for assault until the court consolidated the assault and murder indictments—a period of approximately seven months—defendant could have pleaded guilty to the assault indictment. Once the court consolidated the indictments, defendant could plead guilty to the entire indictment (if the prosecution determined that it would, no longer seek the death penalty) but not to only a portion of it (see CPL 220.10 [2], [4]). Unless the People and the court consented, such a plea was untenable.

II. Jury Selection

Defendant raises a number of arguments concerning jury selection, and in particular assails the trial court’s rulings concerning 16 prospective jurors. We will address only the rulings as to prospective jurors Nos. 23 and 855.

A. Defendant’s For-Cause Challenge of Prospective Juror No. 23

In capital punishment jurisprudence, jurors must be death qualified and life qualified if they are to serve. Broadly put, a juror who is “death qualified” may have misgivings about the death penalty but does not rule out voting for it. Conversely, a juror who is “life qualified” may generally favor the death penalty but does not rule out voting against it.

Defendant claims that prospective juror No. 23 was overly prone toward the death penalty and thus not properly life qualified. He contends that the trial court erroneously denied his challenge for cause under CPL 270.20 (1) (f), requiring the defense to waste a peremptory challenge. Having exhausted his peremptory challenges before the completion of jury selection, defendant seeks redress under CPL 270.20 (2). We agree that the trial court erred in not dismissing prospective juror No. 23 for cause.

In his questionnaire, prospective juror No. 23 said he was “not a total 100% supporter” of capital punishment. He added, however, that a sentence of life without parole could mean that “in some cases the defendant got off easy,” and he indicated that he could not consider a sentence of life without parole because he thought defendant should die, just as the victim did. When questioned individually, however, he made a number of statements attesting to his ability to deliberate fairly. As the prosecution points out, the juror said he was “willing to go along and listen now to hear, you know, what prompted such actions, what happened, what really happened, and see what the story really is.” This seemed reassuring for the moment, but a later exchange was particularly revealing and cast doubt on his previous assertions. When examined by the defense attorney concerning his ability to consider both death and life without parole, juror No. 23 related an incident in his own marriage:

“I had a terrible argument with my wife once, real bad. Almost a knock down drag out. I raised my [h]and to her and I didn’t hit her but I grabbed her and threw her on the couch. You know, I felt sick for doing that because that’s my generation. My generation doesn’t do that. You know, I have never—we have had arguments since, we have had discussions, but, you know, when it comes to that point, it’s time to walk. It’s time to go out the door, get some air, get the hell away. So it’s possible that that could come to mind. As much as I’m sitting here and I’m trying to promise everybody that I’d be fair, I’m still human, I’m still a man, that could come to mind. That’s being honest. . . .

“I’d love to be able to say I could just blank myself out but if the gentleman, if we find the gentleman guilty of First Degree Murder and now comes the penalty phase, as much as I would say, you know, I have to just deal with this, that situation will come up because it still haunts me. It still bothers me.”

Following up on the point, defense counsel asked him if “that life experience of yours ... is causing you some concern as to whether you’d be able to consider both penalties fairly?” and whether “[t]hat would cause you some problems with being able to consider life without parole as the appropriate penalty other than death?” The juror answered yes to both questions. Defendant immediately challenged him for cause, contending that the juror’s life experience would amount to “an inability at the sentencing phase, the penalty phase, to be able to engage in the statutory weighing process that New York law mandates a juror to engage in.” The trial court denied the challenge.

The test for life and death qualification is prescribed in CPL 270.20 (1) (f). Pursuant to that statute, either party in a capital case may challenge a prospective juror for cause if the juror “entertains such conscientious opinions either against or in favor of such punishment as to preclude such juror from rendering an impartial verdict or from properly exercising the discretion conferred upon such juror by law in the determination of a sentence pursuant to section 400.27” (emphasis supplied). In People v Harris (98 NY2d 452, 484 [2002]), we interpreted “preclude” to embody the Wainwright v Witt (469 US 412 [1985]) “prevent or substantially impair” standard, and explained that under this criterion jurors must be dismissed if they “express an inability to set aside their personal views on the death penalty in deference to the court’s instructions” (Harris, 98 NY2d at 484). The proponent of the challenge must demonstrate through questioning the juror’s inability to fulfill his or her oath (see Morgan v Illinois, 504 US 719, 733 [1992]).

Prospective juror No. 23 divulged that an incident in his life involving domestic violence—an issue highly relevant to this case—would strongly color, if not dictate, his views as to the penalty. The People urge that the juror’s earlier statements regarding his ability to serve impartially established his suitability. The juror’s expressions of open-mindedness, however, were undermined by his later responses. Once he acknowledged that his views on domestic violence would impede his ability to consider one of the two sentencing options, his earlier expressions of fitness rang hollow. Rather than grant defendant’s challenge, or at least question the juror as to whether these deeply held views would preclude him from serving impartially in a penalty phase, the court simply allowed the juror to remain on the panel. This was error.

B. The People’s For-Cause Challenge of Prospective Juror No. 855

The People successfully challenged prospective juror No. 855 based on her attitude toward the death penalty. We agree with defendant that this juror was death qualified (see Wainwright v Witt, 469 US 412 [1985]) and that the court improperly granted the People’s challenge.

In her questionnaire, prospective juror No. 855 equivocated about her feelings toward capital punishment. In some responses she indicated she could not consider death as a sentencing option, but in others said she would consider both death and life without parole. When questioned individually, she said that “[i]n most instances” the death penalty was wrong, but allowed that she could accept it in a few cases. The prosecutor questioned her further on this point, pressing her to give examples of cases in which she thought the death penalty appropriate. She agreed with the prosecutor when he suggested that a case involving multiple victims might justify capital punishment, and said she would consider the death penalty in cases that involved “[something very, very very wrong,” or were “bizarre” or “brutal[ ].” She also referred to an instance in which she thought the death penalty warranted, identifying “the case of a mother and daughters that were out in the west.” She declined to give further examples, explaining that she would base her decision on “prayerful consideration and hearing about the situation.”

Furthermore, prospective juror No. 855 answered yes when at different times the prosecutor, defense counsel and the court asked her if she could consider both death and life without parole as possible punishments. Her voir dire concluded when the court asked her if she considered death a possible penalty in this case, and she replied that she “[saw] it as a possible one, sir, yes.” The prosecutor challenged her for cause, arguing that “she refuses to answer a dispositive question,” and the trial court granted the challenge, stating “I don’t think she is in a right mind to be a juror in this case. She is out.”

On this record, juror No. 855 should not have been dismissed for cause. CPL 270.20 (1) (f) and Harris (98 NY2d at 484) require dismissal of a juror whose views “prevent or substantially impair” the juror from rendering an impartial verdict or properly exercising sentencing discretion. Drawing on United States Supreme Court precedent dealing with death and life qualification of capital jurors, we explained that “[w]here jurors express conscientious views concerning the death penalty yet still make clear that they are able to follow their oaths to act impartially, they cannot be excluded for cause from participating on the jury” (Harris, 98 NY2d at 484). Prospective juror No. 855 may have expressed reservations about the death penalty but, after doing so, made it clear that she could follow her oath, act impartially and consider both the death penalty and life without parole. Moreover, the prosecutor made no correlation between this juror’s views on capital punishment and his argument that she refused to answer a question (see id. at 486-487). In advancing his challenge for cause, the prosecutor maintained that this juror’s views on the death penalty were “unknown.”

The contrast between prospective jurors Nos. 855 and 23 illustrates the trial court’s uneven standard in addressing the challenges based on death or life qualification. Juror No. 23 candidly stated that his experience with domestic violence “still haunts [him]” and that he could not “blank his mind” when considering possible penalties. Though the juror “expressed] an inability to set aside [his] personal views” (id. at 484), the court denied defendant’s challenge. On the other hand, juror No. 855 revealed no inability to consider both punishments. She gave examples of cases where she might consider the death penalty, said she would make her decision on penalty after hearing the case, and repeatedly told the parties she would consider both death and life without parole. Nonetheless, the court granted the People’s challenge. We caution that the “prevent or substantially impair” standard applies equally to both death and life qualification (see id. at 484; Morgan, 504 US at 733-734) and that trial courts should employ the test meticulously. The prosecutor based his challenge for cause, at least in part, on his assertion that the juror’s views on the death penalty were “unknown.” The court dismissed the juror, stating only that “I don’t think she is in a right mind.” We caution that a trial court should make every effort to couch its ruling with reference to an articulated standard and, most importantly, create a record that permits appellate review. Here, the recorded exchanges among the juror, the court and the attorneys did not justify dismissal.

Lastly, and most emphatically, we underscore that the chances of reversal are too great to make risky voir dire rulings that could occasion retrial, with all the needless effort and expense that goes with it (see e.g. People v Heard, 31 Cal 4th 946, 966-967, 75 P3d 53, 66 [2003]). We have issued this caution in non-capital criminal cases (People v Nicholas, 98 NY2d 749 [2002]), and it is all the more compelling in capital cases.

C. Remedy for Penalty-Related Juror Selection Errors

Defendant urges that pursuant to CPL 270.20 (2) the trial court’s errors pertaining to prospective jurors Nos. 23 and 855 compel us to overturn not only the death sentence but the guilt phase verdict as well. We disagree. The errors as to both jurors related to their ability to serve impartially only during the penalty phase. Errors of that type do not infect the guilt phase and by no means warrant a reversal of the entire trial.

CPL 270.20 (2) states that “[a]n erroneous ruling by the court allowing a challenge for cause by the people does not constitute reversible error unless the people have exhausted their peremptory challenges at the time or exhaust them before the selection of the jury.” Subdivision (2) goes on to state that the denial of a defendant’s for-cause challenge is not reversible error unless the defendant has exhausted all peremptory challenges or uses a peremptory against the disputed juror and later exhausts all such challenges. In laying out these requirements, the statute contemplates remedial action by the appellate court when the trial court improperly grants or denies a challenge for cause.

Indeed, the loss of a peremptory challenge constitutes harm enough to trigger the statutory remedy contemplated in CPL 270.20 (2) (see e.g. People v Bludson, 97 NY2d 644 [2001]; People v Arnold, 96 NY2d 358 [2001]). An erroneous denial of a defendant’s challenge for cause is not rendered “harmless” merely because the defense later excuses the juror peremptorily (see People v Culhane, 33 NY2d 90, 97 [1973]; People v Chambers, 97 NY2d 417 [2002]). To the contrary, the defendant’s loss of the peremptory challenge constitutes the harm. Where a defendant’s peremptory challenges are thereafter exhausted, erroneous denial of the prior challenge for cause constitutes reversible error warranting corrective action (CPL 270.20 [2]).

The precise corrective action, however, depends on the type of trial involved. Capital trials are divided into guilt and penalty phases (see CPL 400.27). In the traditional, single-phase criminal trial, the jury decides only the defendant’s guilt and not the sentence. Thus, when a trial court rules in violation of CPL 270.20 (1), a new trial is the only possible remedy. The unique, bifurcated structure of a capital trial, however, not only affords the defendant broader protections but also provides alternative remedies for improper rulings. In reviewing the evolution of our statutory law, a number of historical markers support our conclusion that a guilt phase retrial is not required if a juror’s bias goes only to the sentencing phase.

Bifurcated capital trials began in New York in 1963, with the amendment of sections 1045 and 1045-a of the former Penal Law (see L 1963, ch 994, §§ 1, 2). The bill was proposed because, at the time, New York State was the only American jurisdiction that had retained the mandatory death penalty for murder. Proponents concluded that by providing the jury with a life imprisonment option, the bill would achieve the “worthy objective” of terminating New York’s solitary adherence to the mandatory death penalty for murder (see Mem of Commn on Revision of Penal Law and Crim Code in Support of L 1963, ch 994, 1963 McKinney’s Session Laws of NY, at 2019). It would eliminate “the illogical and wasteful situation arising when a jury determination of guilt is negated by failure to agree upon the penalty or recommendation aspect. Through severance of the two issues and prescription of separate verdicts for each, the primary verdict of guilty stands final and recorded regardless of any farther proceedings or determinations with respect to sentence’’ (id. at 2020 [emphasis added]).

Effective 1967, the Legislature revised the Penal Law to make murder a degreeless crime (L 1965, ch 1030, as amended by L 1967, ch 791, § 9), treating intentional killing, depraved indifference murder and felony murder as the same level of offense. Under then-existing Penal Law § 125.30, a defendant convicted of intentional or felony murder was subjected to a second proceeding to determine whether the sentence should be death or life imprisonment.

At the time of these enactments, the former Code of Criminal Procedure had been in effect for over a century, well before the United States Supreme Court decided a number of cases that shaped our statutory development. A Historical Note following the text of section 374 of the Code (Cons Laws of NY Ann, Book 66, at 824 [Edward Thompson Co 1958]) states that “[a] major consideration in enacting sections 374-378 [on challenges for cause] was to define that bias which should be the grounds for eliminating a juror, confining it to those degrees of prejudice which would ‘endanger the substantial rights of the prisoner’ ” (citing Report of Commissioners on Practice and Pleadings, at 196, submitted Dec. 31, 1849). A prospective juror could be challenged for “actual bias” when the juror expressed a state of mind such that the juror could not “try the issue impartially and without prejudice to the substantial rights of the party challenging” (Code Crim Pro § 376 [2]).

Additionally, as the Court said in People v Carolin (115 NY 658 [1889]), a challenge for “implied bias” could also be made in a capital case when a prospective juror expressed “such conscientious opinions as could preclude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror” (Code Crim Pro § 377 [8]).

In 1968, the United States Supreme Court decided Wither-spoon v Illinois (391 US 510 [1968])—a case that influenced our statutoiy scheme relating to juror challenges. Witherspoon held that in a capital case no state could exclude jurors merely because they expressed general objections to the death penalty. The Court stated that, “[i]n its quest for a jury capable of imposing the death penalty, [Illinois] produced a jury uncommonly willing to condemn a man to die” (id. at 520-521).

Soon after, the Legislature added Criminal Procedure Law § 270.20 (1) (f) (L 1970, ch 996, § 1), permitting challenges for cause on the ground that:

“[tjhere is a possibility that the crime charged may be punishable by death and the prospective juror entertains such conscientious opinions either against or in favor of the death penalty as to preclude him from rendering an impartial verdict or from properly exercising the discretion conferred upon him by law in the setting of the penalty upon a proceeding conducted pursuant to section 125.35 of the penal law” (id.).

It also modernized Code of Criminal Procedure § 376 (2), replacing it with CPL 270.20 (1) (b) (L 1970, ch 996, § 1).

At the same time, the Legislature enacted new CPL 270.20 (2), setting out the circumstances in which an erroneous ruling by the trial court on a challenge for cause would amount to reversible error. In People v Culhane (33 NY2d 90 [1973]), the Court focused on prospective jurors who believed defendants guilty primarily based on media accounts, observing that:

“Although the veniremen did not sit on the jury, because the defendants exercised peremptory challenges, this is of no consequence. It is well settled that an erroneous ruling by the court, denying a challenge for cause, constitutes reversible error when the defendant peremptorily challenges the prospective juror and his peremptory challenges are exhausted before the jury selection process is complete (People v. Casey, 96 N. Y. 115, 123; People v. Flaherty, 162 N. Y. 532, 537, 538). This rule of long standing, derived from the common law, has recently been codified in CPL 270.20 (subd. 2).”

It is important to recognize that this common-law rule embodied within CPL 270.20 (2) developed independently, and did not envision challenges for cause pertaining to penalty phase jurors. Indeed, until 1963, there was no such thing as a two-stage capital trial. Rather, CPL 270.20 (2) was concerned with actual bias that could affect a jury’s finding of guilt. By contrast, it is evident—and critical to our determination—that in enacting CPL 270.20 (1) (f), the Legislature was responding only to United States Supreme Court constitutional jurisprudence relating to sentencing phase bias.

This federal-state dialogue concerning the death penalty continued after the passage of CPL 270.20. In People v Fitzpatrick (32 NY2d 499, 509-513 [1973]), relying on the Supreme Court’s recent pronouncement in Furman v Georgia (408 US 238 [1972]), we held Penal Law § 125.35 (5) unconstitutional as violative of the Cruel and Unusual Punishment Clause because it permitted the jury to impose the penalty with unfettered discretion (see also Culhane, 33 NY2d at 95).

In response, the Legislature amended CPL 270.20 (1) (f) to delete the language pertaining to the juror’s exercise of discretion in setting a penalty. A subdivision (1) (f) for-cause challenge was thus limited to whether the juror’s conscientious opinions for or against the death penalty would preclude the juror from rendering an impartial verdict (L 1974, ch 367, § 14) .

In an about-face from the course it took in 1963, and in response to Furman, the Legislature added Penal Law § 60.06, requiring mandatory death sentences for defendants convicted of murder in the first degree (L 1974, ch 367, § 2).

That brings us to the present statute. In 1995, the Legislature amended CPL 270.20 (1) (f) (L 1995, ch 1, § 15), embracing Supreme Court standards for life/death qualification (Harris, 98 NY2d at 482-485). The Legislature sought to ensure that capital defendants receive the same protections afforded in federal prosecutions. To that end, and to craft an additional means of challenging a capital juror for cause, the lawmakers chose language akin to Witherspoon’s requirements regarding life and death qualifications. Indeed, the Legislature has continually responded to Supreme Court rulings in framing the standards for jury selection in capital punishment cases. Based on this progression, and particularly on the passage of the original CPL 270.20 (1) (f) in 1970 in response to Witherspoon, we conclude that the remedy intended in the case of an unqualified penalty phase juror is the same as that mandated by Supreme Court jurisprudence—the reversal of the sentence, as opposed to the entire trial.

This conclusion is buttressed by the explicit language of CPL 270.20 (1) (b) and (f). A subdivision (1) (b) challenge pertains to juror views related only to guilt. Inexorably, reversible error necessitates a new trial. By contrast, a subdivision (1) (f) challenge pertains only to jurors’ capital sentencing views, and reversible error in that context necessitates a new sentencing proceeding. Indeed, in People v Harris (98 NY2d 452 [2002]), we interpreted CPL 270.20 (1) (f)’s “preclude” language to embody the federal “prevent or substantially impair” standard of Wainwright v Witt (469 US 412 [1985]). Considering that our interpretation of the standards governing life and death qualification is derived exclusively from federal precedent, a violation should likewise parallel the federal remedy. Moreover, there is no reason to grant a defendant a windfall by ordering a new guilt phase trial when the jury selection error pertains only to sentence.

Here, the erroneous rulings pertaining to prospective jurors Nos. 23 and 855 were based on challenges that went only to their ability to deliberate fairly and impartially at the penalty phase. As to prospective juror No. 23, defense counsel specifically drew the connection between the juror’s experience with domestic violence and his difficulty in considering life without parole. Additionally, the court dismissed prospective juror No. 855, erroneously concluding that she was unsuitable for the penalty phase. This error does not justify a new guilt phase trial. Moreover, because we conclude that the penalty phase should not have taken place, these errors are of no consequence.

Procedurally, as Professor Preiser explains, a case is in limbo following reversal “absent specification of corrective action . . . required to either finally dispose of the case (e.g., dismissal of the indictment) or prescribe the next step or steps to be taken (e.g., new trial)” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 470.10, at 527). Simply put, in a reversal, a reviewing court may employ various types of corrective action. Here, vacatur of the sentence alone is not only apt, but also the norm (see Gray v Mississippi, 481 US 648 [1987]; see also Heard, 31 Cal 4th at 966-967, 75 P3d at 66; Farina v State, 680 So 2d 392, 396 n 3 [Fla 1996]; Morgan, 504 US at 739).

D. Defendant’s Absence at Sidebar Conferences During Jury Selection

Citing People v Antommarchi (80 NY2d 247 [1992]), defendant argues that his absence from two sidebar conferences during the group voir dire violated his statutory right to be present at the trial (see CPL 260.20). We conclude that defendant waived his right to be present at the bench conferences.

CPL 260.20 requires that “[a] defendant must be personally present during the trial of an indictment.” As we recently noted in People v Foster (1 NY3d 44 [2003]), this right extends to “sidebar and robing room conferences with prospective jurors regarding possible bias or hostility because they may give counsel input ‘in making discretionary choices during jury selection, based on impressions gained from seeing and hearing the juror’s responses on voir dire’ ” (id. at 47, quoting People v Roman, 88 NY2d 18, 26 [1996]). “Moreover, although the right is fundamental, it may be waived” (Foster at 48, citing People v Vargas, 88 NY2d 363, 375-376 [1996]).

Defendant waived his presence twice. First, at a March 1999 court appearance, defense counsel stated that Defendant answered yes. The court assented and asked to be told if defendant changed his mind. On another occasion, defense counsel advised the court that defendant waived his right to be present. The court asked defendant if this was true, and he answered yes. The court emphasized the point: “You’ve talked this over with your lawyer? You know you have an absolute right to be present at every stage of your trial?” Defendant replied: “Yeah, I understand that and I have talked it over with Mr. Priest.” Finally, at the start of group voir dire, defense counsel told the court that defendant “doesn’t wish to participate at the bench conferences.” The conferences in question occurred soon thereafter.

“I would request now for the record to show that [defendant] does not have to be present, unless a decision is made by his attorneys that he would be present. We think it’s highly prejudicial to bring him in front of the cameras, not allowed to dress in his proper clothing as he has been before, and I see no reason for it and just adds to the problems of this case.

“So I ask at this time the record should reflect, Mr. Cahill, you understand that you’re going to waive your right to be present in future appearances, except for hearings?”

Although “a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver” (Foster at 49, citing People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]), defendant twice asserted on the record that he accepted and understood the waiver.

III. Guilt Phase

A. Defendant’s Conviction Under Penal Law § 125.27 (1) (a) (v)

Witness elimination murder is committed when a defendant intentionally kills a victim who “was a witness to a crime committed on a prior occasion and the death was caused for the purpose of preventing the intended victim’s testimony in any criminal action” (Penal Law § 125.27 [1] [a] [v] [emphasis added]). As a threshold matter, the parties dispute the thrust of the words “for the purpose of.” Defendant argues that the crime is not made out unless a defendant kills the victim for the sole purpose of preventing the victim’s testimony. He argues, in essence, that the verdict cannot stand if there was proof that he had any motive for the murder other than his desire to prevent Jill’s testimony. The People contend that evidence of multiple motives may support a conviction for witness elimination murder.

Both parties cite the legislative memorandum, which states:

“Killings must be committed ‘for the purpose’ of preventing, influencing or retaliating for prior testimony. Thus, this provision is applicable when there is both a defined victim characteristic, (witness, family member) and when it can be proven that the defendant’s motivation for committing a killing was to prevent or influence the actual testimony of a victim in a criminal proceeding” (Mem of Codes Comm, at 2, Bill Jacket, L 1995, ch 1).

Like the statutory language, however, this recitation does not address mixed motives. We conclude that the statute would have to be read too expansively to authorize a conviction when a defendant’s motivation to eliminate a witness is insubstantial or incidental. Conversely, we cannot imagine that the Legislature intended to exclude a defendant—whose motivation to eliminate a witness was a substantial reason for the murder—merely because the defendant may have had other reasons or motives for the murder. Accordingly, the statute is satisfied if defendant’s motivation to eliminate Jill as a witness was a substantial factor in murdering her, even though he may have had mixed motives. Applying this standard, we address defendant’s claim that his conviction for murder in the first degree based on witness elimination (see Penal Law § 125.27 [1] [a] [v]) is both legally insufficient and against the weight of the evidence. We conclude that the evidence adduced on this count is legally sufficient, but that the verdict is against the weight of the evidence.

CPL 470.30 directs that criminal appeals taken directly to our Court are governed by CPL 470.15 and 470.20, which in turn address the scope of our review and the corrective action to be taken upon reversal or modification. Pursuant to CPL 470.15 (2) and (4), reversal or modification may be based on a determination that the evidence adduced at trial is not legally sufficient to establish the defendant’s guilt. On the other hand, CPL 470.15 (5) allows for reversal or modification when a verdict is, in whole or in part, against the weight of the evidence.

Legal sufficiency review and weight of the evidence review involve different criteria. In assessing legal sufficiency, a court must “determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (People v Bleakley, 69 NY2d 490, 495 [1987], citing Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). By contrast, weight of the evidence review recognizes that “[e]ven if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further” (Bleak ley, 69 NY2d at 495). An appellate court weighing the evidence “must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (id., quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). If “based on all the credible evidence a different finding would not have been unreasonable” and if the “trier of fact has failed to give the evidence the weight it should be accorded,” the appellate court may set aside the verdict (id.). When an appellate court performs weight of the evidence review, it sits, in effect, as a “thirteenth juror” (Tibbs v Florida, 457 US 31, 42 [1982]).

Our dissenting colleagues are critical of our weight of the evidence analysis, claiming that this review is not an “open invitation” to substitute our own judgment for that of the jury. Of course that is true. But on the other hand, weight of the evidence review does not connote an invitation to abdicate our responsibility. A guilty verdict based on a legally sufficient case is not the end of our factual analysis but the beginning of our weight of the evidence review. Indeed, we are not only authorized to conduct this review but also constitutionally compelled to do so (NY Const, art VI, §§ 3, 5). Under the Constitution of our state, “in capital cases in which the sentence of death has been imposed, this court is vested with the power to and must review the facts” (People v Davis, 43 NY2d 17, 36 [1977], citing NY Const, art VI, §§ 3, 5; People v Carbonaro, 21 NY2d 271, 274 [1967]). In People v Crum (272 NY 348 [1936]), we underscored the importance of weight of the evidence review, noting that “[w]e are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt.” (Id. at 350.)

Thus, because a death sentence appeal comes directly to our Court, we conduct this type of analysis, which is routine in Appellate Division review of criminal cases (CPL 470.15 [5]). There is nothing the least bit novel about Appellate Division weight of the evidence reversals.

In arguing for witness elimination murder, the People drew upon certain events in defendant’s life and matched them with steps he took toward planning Jill’s murder. The People linked (1) the May 1998 Family Court appearances with defendant’s Internet searches for cyanide; (2) the June and July 1998 developments in defendant’s assault case with his procurement of cyanide; (3) defendant’s October 1998 conversation with Patricia Cahill, defendant’s mother, about her visit to Jill in the hospital with defendant’s first disguised entrance into the hospital (in which a nursing assistant discovered defendant in Jill’s room); and (4) defendant’s upcoming Huntley hearing in the assault case with his having committed the murder. Viewed in the light most favorable to the People (see People v Carr-El, 99 NY2d 546, 547 [2002]), this timeline theory establishes a legally sufficient case. But it is barely that, and is decidedly against the weight of the evidence.

First, the May 1998 Family Court appearances primarily concerned the Cahill children. At the May 11 hearing, the Assistant District Attorney stated that the criminal court had issued an order of protection on behalf of the children and that they were potential witnesses in the assault case. The only evidence pertaining to the May 19 hearing involved psychological testing for the children. Jill’s status as a witness was not mentioned during these hearings—in fact, Jill was not mentioned at all. The better part of the evidence reveals that defendant was motivated to poison his wife because their marriage and family life were being destroyed, not because he wanted to kill a witness to the assault case.

Using the prosecution’s timeline, a critical feature refutes its witness elimination theory: defendant procured potassium cyanide long before there was any possible belief—on anyone’s part—that Jill could ever testify at a trial, given her condition. After the assault, Jill suffered from a host of medical complications that utterly incapacitated her as a witness. Further, one doctor testified that as late as August 1998, when Jill entered the coma rehabilitation unit, her cognitive abilities ranked at a five or six on a 25-point scale. Moreover, at the corresponding criminal proceedings, there was no mention that Jill might or possibly could testify against defendant. Indeed, there is not a shred of evidence in this record that Jill had even retained a memory of the assault. Most compellingly, an assistant district attorney testified that up to the date of Jill’s murder no law enforcement official had even interviewed her about the assault.

In seeking to prove that defendant knew Jill was able to speak and was afraid of what she would say, the People relied largely on the testimony of Patricia Cahill, defendant’s mother. She merely testified, however, that defendant told her that “ T hope that when this is all concluded that she can tell the truth about what led to the break-up’ of their marriage.” This statement does not evince defendant’s fear of Jill’s possible testimony in the assault trial; it is more a comment about the dissolution of his family. In addition, Patricia Cahill testified that, during a visit, Jill “said something” to the nurses, and also that she told defendant about Jill’s physical condition. But we do not know what Jill said, or what Patricia Cahill told defendant about Jill’s status. Furthermore, Fred Russell, Jill’s father, stated that “there was not a word spoken” during Patricia Cahill’s visit to the hospital. Thus, Patricia Cahill’s testimony does not even suggest, let alone reveal, what defendant knew about Jill’s condition and speaking ability. It does not begin to show that he was afraid that Jill would testify against him at the assault trial.

Additional factors rebut the witness elimination theory. The very brutality of the April 1998 assault permits the compelling inference that, even as of then, defendant wanted to kill his wife and that ultimately doing so fulfilled his previously formed intent, which sprang from the impending divorce.

Beyond that, defendant had fully confessed to the assault and the prosecution had a powerful case without Jill’s testimony. In confessing to the assault, defendant admitted that he hit Jill on the head at least three or four times with the baseball bat. He further admitted that he struck her while she was unarmed, thus foreclosing any plausible claim of self-defense. He also confessed to having wounded himself, a deception designed to make it look as if he acted in self-defense, and that he attempted suicide after the assault. In light of these candid disclosures, there is scant basis to believe that defendant thought he could avoid an assault conviction by murdering Jill.

In weighing the conflicting inferences that can be drawn from the facts, the proof leads us to conclude that defendant, to put it plainly, wanted to kill Jill at the hospital for reasons that had virtually nothing to do with her ability to testify against him. The weight of the evidence does not support witness elimination as a substantial motive for the murder, and we therefore hold that the conviction for murder in the first degree under Penal Law § 125.27 (1) (a) (v) must be vacated.

B. Defendant’s Conviction Under Penal Law § 125.27 (1) (a) (vii)

In addition to witness elimination murder, defendant was convicted under Penal Law § 125.27 (1) (a) (vii). That section elevates intentional murder to capital-eligible murder when a defendant with “intent to cause the death of another person . . . causes the death of such person . . . and . . . the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of . . . burglary in the first degree or second degree.” As a matter of statutory interpretation, we conclude that the conviction cannot stand because the burglary carried no intent other than to commit the murder.

Penal Law § 125.27 (1) (a) (vii) is best understood in light of the Legislature’s purpose in devising aggravating factors as predicates for the death penalty. In Tuilaepa v California (512 US 967, 971-972 [1994]), the Supreme Court held that “[t]o render a defendant eligible for the death penalty in a homicide case . . . the trier of fact must convict the defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at either the guilt or penalty phase. See, e.g., Lowenfield, v. Phelps, 484 U.S. 231, 244-246 (1988); Zant v. Stephens, 462 U.S. 862, 878 (1983).”

The Legislature drew up a list of aggravating factors to create a subclass of defendants who, in contrast to others who commit intentional murder, it thought deserving of the death penalty. By this device, the lawmakers saw to it that the death penalty could not fall randomly on all murder defendants. The Legislature’s factors govern the discretion of courts and juries by limiting capital punishment to certain enumerated categories of intentional killings, ensuring that the State follows its “constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty” (Godfrey v Georgia, 446 US 420, 428 [1980]; see also Za