People v. Sharper

Ellerin and Nardelli, JJ.,

dissent in a memorandum by Nardelli, J., as follows. The third panel of potential jurors in this case included a physician from Bellevue Hospital who told the court he had a friend in the District Attorney’s office and that he dealt with prisoners and with police officers. The doctor told the court that he did not know whether this would affect his ability to be fair and that he had great respect for officers. He also acknowledged, however, that some police officers are honest and some dishonest. When asked directly by the court whether he could evaluate the testimony of police officers fairly, he replied: “I don’t know, but I would guess so”. He later agreed he would “tend to favor the police testimony.” This physician noted that he was scheduled to begin a two-week training assignment in his hospital’s intensive care unit. When asked if he could give the case his full attention, he responded that “I could possibly be thinking about” the intensive care unit. However, he again conceded that if he were replaced he would have no obligations to the unit, but he also asserted if the trial were a long one, he would definitely be wondering what is going on in the hospital and that this “might” interfere with his ability to deliberate.

As noted by the majority, the defense challenged this doctor on two bases. The first one was his stated respect for the police and how he would give them more credence than the normal witness. Counsel also noted that “equally if not more important” the doctor would not be able to deliberate if the trial were long because he would be bothered by his medical duty. *142There was then a colloquy between the prosecutor, defense counsel and the court and the court concluded that the challenge for cause should be denied. However, neither the court nor the prosecutor addressed the doctor’s comments about police witnesses. The defense counsel did not bring this omission to their attention, but used a peremptory challenge against the doctor.

The majority finds that this was an erroneous denial of a challenge for cause and constituted reversible error. However, defendant’s current position, and that enunciated by the majority, was not fairly presented to the trial court. Defense counsel briefly noted that the doctor might not be able to fairly assess police testimony and then went into another “if not more important” issue. Although it is obvious that both the court and prosecutor were concentrating on the second issue raised by defense counsel and had missed the first point, counsel did not bring that fact to their attention. Since defendant did not raise the issue during the argument or request a ruling from the judge on this specific issue, but simply made a “perfunctory” mention of the issue, it is unpreserved (People v Anderson, 242 AD2d 489, lv denied 91 NY2d 888; People v Hernandez, 122 AD2d 856, 857).

Moreover, a review of the record reveals that another potential juror informed the court that she had known Michael Stewart, an individual who was killed by the Transit Police. When the court asked her whether she could listen to the testimony of police officers with an open mind, she also replied that she would “try” to, but she noted that she was definitely biased and that while she would “try to be open” she didn’t “know” if she could. When the court denied the challenge by defendant to the doctor for cause, it also denied the challenge to this latter female juror made by the prosecutor, necessitating that the prosecutor use a peremptory challenge for this individual.

The majority correctly cites People v Blyden (55 NY2d 73) for the proposition that a prospective juror who expresses partiality and cannot unequivocally promise to set aside the bias should be removed for cause. However, in this case, the doctor was never asked if he could set aside any bias. Defense counsel could have asked the court to question the doctor further about his ability to be fair and to impartially judge the testimony of any police officer witness. As shown by its treatment of both the doctor and the female panelist, the court exercised its sound discretion, after observing and listening to both, in deciding that a challenge for cause as to both should be denied.

*143We have previously held that a for-cause challenge was properly denied where a “potential juror’s assurances of impartiality were cautiously phrased” (People v Smith, 232 AD2d 209, lv denied 89 NY2d 946). Likewise in this case, the doctor never gave “any indication of actual bias” (supra, at 209). Therefore, the court, which had the opportunity to observe the doctor and his responses, did not abuse its discretion in finding that he could sit.