People v. Johnson

Ellerin, J. P.

(dissenting). A reading of a cold record cannot reflect the reality of the jury selection dynamic that is the setting within which the Trial Judge makes a determination as to whether a challenge for cause to a potential juror should be granted. When an experienced Trial Judge, who has had the benefit of the facial expressions, body gestures and other indicia of sincerity that no record can capture, makes a determination rejecting the cause challenge it should not be lightly disregarded. In this instance the Judge obviously concluded that while the potential juror’s answers may have reflected an excess of caution, they did not manifest actual bias or a state of mind that would make it likely to preclude him from rendering an impartial verdict (see, People v Smith, 232 AD2d 209, lv denied 89 NY2d 946). As indicated in the dissent by Mr. Justice Nardelli in the case of the codefendant Chance Sharper (255 AD2d 135,141 [decided herewith]) in which I concur, this conclusion is bolstered by the significantly greater emphasis placed by defense counsel on the alternative issue of the doctor’s concern about the possibility of being away from the hospital for an extended period of time, after a brief and perfunctory observation that the doctor might not be able to fairly assess police testimony, without further exploration of that issue. Accordingly, I would affirm the conviction in this case as well as in the codefendant Sharper’s case since denial of the challenge for cause was an appropriate exercise of the court’s discretion.