Judge declares mistrial in case against LI hunter

An upstate judge has declared a mistrial in the case against a Long Island hunter accused of recklessly shooting and injuring a man he thought was a deer, saying the defendant was denied an opportunity to face a jury of his peers because six hunters were excluded from the panel.

The case against Robert Robar, 53, a New York City Transit bus driver from Valley Stream, is expected to be retried Oct. 25, according to Sullivan County Court Chief Clerk Earl Lilly.

The mistrial came Thursday after Sullivan County Court Judge Frank LaBuda found that Robar's attorney, Jacqueline Ricciani of Monticello, improperly used what are known as peremptory challenges to strike six active hunters from the jury panel. Legal precedent bars attorneys from excluding jurors based solely on race, religion or gender.

According to a transcript of the court proceeding, LaBuda said the New York Court of Appeals, the state's highest court, has extended that to other equal protection issues and found that hunters constitute a class of people.

Robar is charged with felony assault and reckless endangerment stemming from a Nov. 24, 2009, incident in upstate Lumberland. Another hunter, Terry Pelton of Sparrowbush, inadvertently wandered into a camp area reserved by Robar and other men. Pelton was wearing camouflage and walking behind trees. Thinking Pelton was a deer, Robar shot him from with a single shot from a Savage .30-06 hunting rifle, authorities said at the time.

When he heard Pelton scream, Robar immediately went to his aid and rushed him to a local hospital. Authorities later credited him with saving Pelton's life.

Robar did not return a call for comment Saturday.

The legal precedent regarding exclusion of jurors is based on Batson vs. Kentucky, a 1986 U.S. Supreme Court decision. In that case, the justices ruled, 7-2, that a lawyer's use of a peremptory challenge to exclude a juror, without having to state a specific cause, cannot be used to bar jurors based solely based on race or gender. The high court decision later was expanded to include religious affiliation.

In his ruling on the mistrial, LaBuda said, "The prosecution clearly laid out that hunters have a right to sit on a jury. They are a class of people . . . "

He also said that every defendant has a right to have a jury of one's peers.

Prosecutors could not be reached for comment, but have argued that Robar was criminally reckless for not verifying that he was shooting at a deer, according to the Times Herald-Record of Middletown. In an interview Saturday with Newsday, Ricciani said the shooting was "a horrible, horrible accident."

She said she was "dumbfounded" by LaBuda's decision because she does not believe hunters constitute a protected class. She also argued that hunters are not her client's peers.

If convicted, Robar could face up to seven years in prison, Ricciani said.

"No matter what happens in the criminal case, this is something that will be part of him forever," she said.