Opinion
2011-10-11
The PEOPLE of the State of New York, Respondent,v.Osvaldo ACOSTA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered October 16, 2009, convicting defendant, after a jury trial, of robbery in the third degree and attempted robbery in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 5 to 10 years, unanimously affirmed.
The court properly granted the People's challenge for cause to a prospective juror ( see People v. Williams, 63 N.Y.2d 882, 885, 483 N.Y.S.2d 198, 472 N.E.2d 1026 [1984] ). The trial court's ability to observe demeanor is entitled to deference. The panelist's responses revealed “opinions reflecting a state of mind likely to preclude impartial service” ( People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] ), and she ultimately was unable to give an unequivocal assurance of impartiality. Her responses,
viewed as a whole, evinced a serious difficulty with following the law relating to one-witness identification cases.
Where there is any doubt, the court should err on the side of disqualification because “the worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror” ( People v. Culhane, 33 N.Y.2d 90, 108 n. 3, 350 N.Y.S.2d 381, 305 N.E.2d 469 [1973] ).
MAZZARELLI, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ABDUS–SALAAM, JJ., concur.