Opinion
November 28, 1994
Appeal from the Supreme Court, Westchester County (Rosato, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact were raised or considered.
We find that the trial court's instruction to the jury concerning the defendant's status as an interested witness (namely, that the defendant had a "deep personal interest" in his prosecution "of a character * * * possessed by no other witness"), was improper (see, People v. Williams, 197 A.D.2d 721; People v. Martinez, 186 A.D.2d 153). This error was particularly prejudicial and warrants reversal of the defendant's conviction, since the primary issue to be resolved by the jury was a direct conflict between the testimony of the witnesses for the prosecution and the testimony of the defendant (see, People v Ochs, 3 N.Y.2d 54).
In its Sandoval ruling, the trial court held that, with respect to the defendant's prior conviction of assault in the first degree, evidence that the defendant had been charged initially with attempted murder would be admissible. This was also error (see, People v. Little, 55 N.Y.2d 770; People v. Cook, 37 N.Y.2d 591; People v. Sigl, 124 A.D.2d 1053).
We also find that during the voir dire, the Trial Judge improperly lectured certain of the prospective jurors regarding their personal biases concerning a case arising from a drug related charge. The court's extensive questioning of these jurors, in its attempt to determine whether they could be unbiased, was excessive, and, in any event, did not establish a lack of bias. "[I]n order to avoid the possibility of unfairness, Trial Judges should disqualify prospective jurors of questionable impartiality, rather than permit them to serve" (People v Moorer, 77 A.D.2d 575, 577; see also, People v. Sellers, 73 A.D.2d 697). It was error for the court to deny the defense counsel's challenges for cause regarding these jurors, since they were equivocal about their ability to be impartial in this case (see, People v. Moorer, supra). Bracken, J.P., Santucci, Krausman and Goldstein, JJ., concur.