People v. Dixon

81 A.D.2d 620, 438 N.Y.S.2d 6, 1981 N.Y. App. Div. LEXIS 11121

Opinions

— Appeals by defendants from two judgments (one as to each of them) of the County Court, Westchester County, both rendered November 6, 1978, convicting them of burglary in the third degree and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentences. Judgments reversed, on the law, and new trial ordered. During the voir dire of prospective jurors, the trial court advised defense counsel that one of the jurors may have observed defendant Christopher in handcuffs while Christopher was being escorted to the lock-up. The trial court informed the defense that the juror might be challenged peremptorily, and that in the event the defense later had exhausted the available peremptory challenges, the trial court would in its discretion allow an additional peremptory challenge. The juror was then challenged peremptorily by the defense. Subsequently, an additional peremptory challenge was requested by the defendants after their available peremptory challenges had been exercised. However, the trial court denied the request. We think the denial of the request was error. In the first instance, the defense used a peremptory challenge to excuse the juror who could have seen defendant Christopher in handcuffs — a position prejudicial to him (People v Dell’Orfano, 72 AD2d 749, 751; People v Gonzalez, 55 AD2d 656). In doing so, the defense relied on the court’s statement that an additional peremptory challenge would be allowed in its discretion. Hence, it was error not to grant an additional challenge when the defense had exhausted its peremptory challenges. Moreover, the Trial Judge’s failure to allow the additional peremptory challenge, after initially suggesting that he would, was particularly egregious since Christopher was one of three codefendants standing trial and therefore did not have unfettered use of the 10 peremptory challenges allotted to the defense as a whole. (See CPL 270.25, subd 3.) Mollen, P.J., and Mangano, J., concur.