Opinion
KA 01-01707
November 15, 2002.
Appeal from a judgment of Onondaga County Court (Burke, J.), entered September 3, 1996, convicting defendant after a jury trial of, inter alia, criminal possession of a controlled substance in the first degree.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (LAURIE M. ISRAEL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law and as a matter of discretion in the interest of justice and a new trial is granted on counts one, two and three of the indictment.
Memorandum:
In People v. Rodriquez ( 286 A.D.2d 1003), we granted defendant's motion for a writ of error coram nobis and vacated the order affirming a judgment convicting him after a jury trial of conspiracy in the second degree (Penal Law § 105.15), criminal possession of a controlled substance in the first degree (§ 220.21 [former (1)]), and criminal possession of a controlled substance in the third degree (§ 220.16 [1]; see People v. Rodriquez, 247 A.D.2d 841, lv denied 91 N.Y.2d 977).
On this appeal de novo, defendant contends that he was arraigned on a superseding indictment, and thus County Court lacked jurisdiction to try him on the original indictment. We disagree. The record establishes that defendant was arraigned and tried on the original indictment, and thus the court had jurisdiction ( see generally CPL 200.80). The further contention of defendant that the court erred in denying a challenge for cause to a prospective juror is not preserved for our review "since he did not join in his codefendant's application to challenge the juror" ( People v. Faison, 250 A.D.2d 777, 777, lv denied 92 N.Y.2d 924; see People v. Colselby, 240 A.D.2d 227, 227, lv denied 90 N.Y.2d 1010). We nevertheless exercise our power to address that contention as a matter of discretion in the interest of justice, and conclude that the court erred in denying the challenge for cause. As we determined on the appeal of the codefendant, "the prospective juror gave equivocal responses concerning his impartiality and did not state unequivocally that his prior state of mind would not influence his verdict. We must therefore reverse the judgment and grant a new trial" ( People v. Escoto, 283 A.D.2d 962, 963, lv denied 96 N.Y.2d 901, citing People v. Blyden, 55 N.Y.2d 73, 78-79, People v. Burdo, 256 A.D.2d 737, 741, and People v. Brzezicki, 249 A.D.2d 917, 918-919).
In view of our determination, there is no need to address the remaining contentions raised by defendant.