People v. Broderick

255 A.D.2d 389, 679 N.Y.S.2d 847, 1998 N.Y. App. Div. LEXIS 11754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1998
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 22, 1994, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The court committed reversible error when, after the defense counsel made his peremptory challenges, it permitted the prosecutor to belatedly exercise a peremptory challenge to a still unsworn, prospective juror (see, CPL 270.15 [2]; People v McQuade, 110 NY 284; People v Lebron, 236 AD2d 423; People v De Conto, 172 AD2d 684, affd 80 NY2d 943; see also, People v Alston, 88 NY2d 519).

Further, we note that the court erred in refusing to charge that a reasonable doubt could arise from a lack of evidence as well as from the evidence presented (see, People v Roldos, 161 AD2d 610). Bracken, J. P., Pizzuto, Friedmann and Luciano, JJ., concur.