Opinion
570342/04.
Decided February 23, 2006.
Defendant appeals from a judgment of the Criminal Court, New York County (Richard Weinberg, J.), rendered May 3, 2004, after a jury trial, convicting him of menacing in the second degree, criminal possession of a weapon in the fourth degree, and harassment in the second degree, and imposing sentence.
Judgment of conviction (Richard Weinberg, J.), rendered May 3, 2004, affirmed.
PRESENT: Suarez, P.J., Davis, Gangel-Jacob, JJ.
Since the court's sua sponte action in discharging a prospective juror was the functional equivalent of a granting of a challenge for cause by the People, and since the People never exhausted their peremptory challenges, CPL 270.20(2) forecloses review of defendant's present claims relating to the court's discharge of the prospective juror for cause ( see People v. Velez, 223 AD2d 414, lv denied 88 NY2d 855). In any event, defendant's claims are both unpreserved and lacking in merit. The prospective juror's statements, indicating a belief that two police sergeants had "lied under oath" in a recent, unsuccessful criminal prosecution brought against him on charges that were "almost the same" as those involved here, raised a substantial risk that the individual would be unable to serve as an impartial juror in this case ( see People v. Smith, 5 AD3d 291, 292 lv denied 3 NY3d 648; People v. Rodriguez, 216 AD2d 182, 183, lv denied 86 NY2d 846).
This constitutes the decision and order of the court.