People v. Birch

May 15, 1995
Versions:215 A.D.2d 573
626 N.Y.S.2d 845
1995 N.Y. App. Div. LEXIS 5088

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cozier, J.), rendered March 10, 1993, convicting him of criminal possession of a weapon in the third 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 erred in refusing to dismiss three prospective jurors for cause when they did not unequivocally state that they would not be influenced by their feelings and would render an impartial verdict (see, People v Blyden, 55 NY2d 73, 76; People v Culhane, 33 NY2d 90). Because defense counsel then exercised peremptory challenges against those prospective jurors, and eventually exhausted his allotment of peremptory challenges, the defendant’s conviction must be reversed (see, People v Torpey, 63 NY2d 361; see also, People v Hewitt, 189 AD2d 781).

We have reviewed the defendant’s remaining contentions, including his claim that his sentence was excessive, and find them to be without merit (see, People v Coleman, 82 NY2d 415, 432). Balletta, J. P., Copertino, Altman and Goldstein, JJ., concur.