Opinion
2001-00077
Argued June 16, 2003.
September 8, 2003.
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.
Lynn W. L. Fahey, New York, N.Y. (Winston McIntosh of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, Beverly Kalman, and James L. Iannone of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, and as a matter of discretion in the interest of justice, 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; People v. Williams, 26 N.Y.2d 62; People v. Broderick, 255 A.D.2d 389; People v. Lebron, 236 A.D.2d 423; People v. De Conto, 172 A.D.2d 684, affd 80 N.Y.2d 943; People v. Walker, 168 A.D.2d 470; see also People v. Alston, 88 N.Y.2d 519).
The defendant's challenge to the reckless endangerment charge as a lesser-included offense of murder in the second degree ( see CPL 1.20 is unpreserved for appellate review ( see People v. Ford, 62 N.Y.2d 275, 283).
In light of our determination that a new trial is required, we do not reach the defendant's remaining contentions.
FLORIO, J.P., SCHMIDT, CRANE and COZIER, JJ., concur.