Opinion
December 27, 2000.
Appeal from Judgment of Niagara County Court, Fricano, J. — Criminal Possession Weapon, 2nd Degree.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, KEHOE AND BALIO, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02). Defendant, a Native American, contends that reversal is required based on County Court's failure to grant his challenge for cause to a prospective juror. Contrary to defendant's contention, that failure, even if error, would not require reversal because defendant exercised a peremptory challenge to excuse that juror and did not thereafter exhaust his peremptory challenges ( see, CPL 270.20; cf., People v. Torpey, 63 N.Y.2d 361, 365, rearg denied 64 N.Y.2d 885). Also, contrary to defendant's contention, defense counsel's failure to exhaust all of the available peremptory challenges does not constitute ineffective assistance of counsel ( see generally, People v. Baldi, 54 N.Y.2d 137, 147). We reject defendant's further contention that, pursuant to 25 U.S.C. § 232, the People had to prove that he did not intend to possess the weapon for hunting purposes. Finally, the contention of defendant in his pro se supplemental brief that New York State lacks subject matter jurisdiction to prosecute him because he is a Native American and was arrested on a Native American reservation is both unpreserved for our review and without merit ( see, People v. Gunton, 198 A.D.2d 890, lv denied 82 N.Y.2d 896).