| People v Acosta |
| 2011 NY Slip Op 07131 [88 AD3d 483] |
| October 11, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Osvaldo Acosta, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), forrespondent.
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 robberyin the third degree, and sentencing him, as a second felony offender, to an aggregate term of 5 to10 years, unanimously affirmed.
The court properly granted the People's challenge for cause to a prospective juror (seePeople v Williams, 63 NY2d 882, 885 [1984]). The trial court's ability to observe demeanoris entitled to deference. The panelist's responses revealed "opinions reflecting a state of mindlikely to preclude impartial service" (People v Johnson, 94 NY2d 600, 614 [2000]), andshe 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-witnessidentification cases.
Where there is any doubt, the court should err on the side of disqualification because "theworst the court will have done in most cases is to have replaced one impartial juror with anotherimpartial juror" (People v Culhane, 33 NY2d 90, 108 n 3 [1973]).Concur—Mazzarelli, J.P., Friedman, Catterson, Moskowitz and Abdus-Salaam, JJ.