People v. Feliciano

308 A.D.2d 459, 764 N.Y.S.2d 196, 2003 N.Y. App. Div. LEXIS 9267

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered December 18, 2000, convicting him of murder in the second degree, robbery in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment 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 trial 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 Williams, 26 NY2d 62 [1970]; People v Broderick, 255 AD2d 389 [1998]; People v Lebron, 236 AD2d 423 [1997]; People v De Conto, 172 AD2d 684 [1991], affd 80 NY2d 943 [1992]; People v Walker, 168 AD2d 470 [1990]; see also People v Alston, 88 NY2d 519 [1996]).

The defendant’s challenge to the reckless endangerment charge as a lesser-included offense of murder in the second degree (see CPL 1.20 [37]) is unpreserved for appellate review (see People v Ford, 62 NY2d 275, 283 [1984]).

In light of our determination that a new trial is required, we need not reach the defendant’s remaining contentions. Florio, J.P., Schmidt, Crane and Cozier, JJ., concur.