People v. Ventimiglia, 52 N.Y.2d 770 (1981)
A defendant seeking a change of venue due to pretrial publicity must demonstrate, through the jury selection process, that a fair and impartial jury could not be selected because of the publicity.
Summary
Ventimiglia was convicted of murder, robbery, and burglary. He appealed, arguing that extensive pretrial publicity prevented a fair trial. His initial motion for a change of venue was denied before trial. The Court of Appeals affirmed the Appellate Division’s order, holding that the defendant failed to create a record during jury selection demonstrating the inability to select an impartial jury due to the publicity. The court emphasized the necessity of a detailed record of jury selection, including questions, answers, and the use of peremptory challenges, to support a claim of prejudice from pretrial publicity.
Facts
Defendant Ventimiglia was convicted of second-degree murder, first-degree robbery, and first-degree burglary.
Prior to trial, there was extensive pretrial publicity concerning the homicide and the defendant’s alleged involvement.
The defendant moved for a change of venue based on this pretrial publicity, which was denied.
Procedural History
The defendant moved for a change of venue before trial, which was denied by the Appellate Division.
Following his conviction, the defendant appealed the judgment, renewing his claim that pretrial publicity prevented a fair trial.
The Appellate Division affirmed the conviction.
The New York Court of Appeals affirmed the Appellate Division’s order.
Issue(s)
Whether the defendant demonstrated that he was unable to select a fair and impartial jury due to widespread pretrial publicity, thus warranting a change of venue.
Holding
No, because the record on appeal did not contain a transcript of the jury selection proceedings, making it impossible to determine whether the extensive publicity prevented the selection of a fair and impartial jury.
Court’s Reasoning
The Court of Appeals emphasized the importance of creating a proper record during jury selection to demonstrate prejudice from pretrial publicity. The court stated that after the initial motion for a change of venue is denied, the defendant must attempt to select an impartial jury, and these proceedings must be recorded stenographically.
The court noted, “At that time counsel could have attempted to establish by his questions and the answers to them that the extensive publicity made it impossible to select an impartial jury, if such was the fact, and upon said record the motion for change of venue could have been renewed and given proper consideration by the court.”
The court also mentioned the importance of whether the defendant used all of his peremptory challenges during jury selection, as this could indicate the difficulty in finding an impartial jury.
Because the record lacked a transcript of the jury selection, the court could not determine whether the defendant was prejudiced by the pretrial publicity. The absence of this record was fatal to the defendant’s claim on appeal.