PEOPLE v. ODUM

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Roger ODUM, Defendant-Appellant.

Decided: November 20, 2009

PRESENT:  HURLBUTT, J.P., CENTRA, FAHEY, PERADOTTO, AND GORSKI, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Robert P. Rickert of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of Counsel), for Respondent.

 On appeal from a judgment convicting him upon a jury verdict of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[3] ), defendant contends that County Court erred in denying his challenge for cause with respect to a prospective juror.   We reject that contention.   It is well settled that “a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial” (People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  see People v. Nicholas, 98 N.Y.2d 749, 751-752, 751 N.Y.S.2d 820, 781 N.E.2d 884).   Here, the prospective juror never expressed any doubt concerning his ability to be fair and impartial (see People v. Semper, 276 A.D.2d 263, 714 N.Y.S.2d 12, lv. denied 96 N.Y.2d 738, 722 N.Y.S.2d 806, 745 N.E.2d 1029).   We conclude that, viewing the statements of the prospective juror as a whole, the statements were unequivocal despite the use of the words “think” and “try” (see People v. Shulman, 6 N.Y.3d 1, 28, 809 N.Y.S.2d 485, 843 N.E.2d 125, cert. denied 547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339;  Chambers, 97 N.Y.2d at 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;  People v. Jones, 21 A.D.3d 860, 801 N.Y.S.2d 318, lv. denied 6 N.Y.3d 755, 810 N.Y.S.2d 423, 843 N.E.2d 1163;  Semper, 276 A.D.2d 263, 714 N.Y.S.2d 12).

 Defendant failed to preserve for our review his further contention that the interpreter assigned to assist him was inadequate because he lacked experience and was uncertified (see People v. Santiago, 265 A.D.2d 827, 695 N.Y.S.2d 830, lv. denied 94 N.Y.2d 866, 704 N.Y.S.2d 542, 725 N.E.2d 1104;  People v. Hatzipavlou, 175 A.D.2d 969, 573 N.Y.S.2d 425, lv. denied 79 N.Y.2d 827, 580 N.Y.S.2d 208, 588 N.E.2d 106).   In any event, that contention is without merit.   Although the interpreter did not have any prior experience interpreting during a trial, the record establishes that he nevertheless was qualified to do so (see generally Hatzipavlou, 175 A.D.2d 969, 573 N.Y.S.2d 425).   The fact that the interpreter was not a certified interpreter does not invalidate his assistance to defendant (see People v. Costa, 186 A.D.2d 299, 587 N.Y.S.2d 452, lv. denied 81 N.Y.2d 761, 594 N.Y.S.2d 723, 610 N.E.2d 396;  see generally Judiciary Law § 387).   Finally, we reject the contention of defendant that he was denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: