OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be modified to reverse the conviction of Gregory Reed and dismiss the indictment as to him and, as so modified, should be affirmed.
As to the disqualification of the trial juror who had served on a Federal Grand Jury during the two years prior to trial of the present case, we agree with the Appellate Division, for the reasons set forth in the opinion of Justice Leon D. Lazer, that defendants Fred Foster and Gregory Reed waived the issue. Defendants argue that because the Judiciary Law speaks separately to qualifications (§ 510) and disqualifications (§ 511) and CPL 270.20 (1) provides that, “A challenge. for cause is an objection to a prospective juror and may be made only on the ground that: (a) He does not have the qualifications required by the judiciary law” (emphasis supplied), they could not have challenged the juror for cause and, therefore, were not required by CPL 270.20 (2) to join in the peremptory challenge to the juror in order to preserve the error. They point to the fact that
The argument has surface appeal but exalts form over substance. The qualifications of citizenship, age, residence, mental and physical ability, intelligence, character and ability to read and write English and speak English understandably go to the substance of a juror’s function, to listen, understand and deliberate, whereas the disqualifications — for service in the Armed Forces, as an elected or appointed government official, Federal or State Judge or as a juror within two years past — relate not to competence or ability to serve as a juror but to governmental policy: with respect to prior service, as Justice Lazer noted, to discourage professional jurors and render jury service more attractive by minimizing its burdens. Thus, despite the wording of CPL 270.20 (1), defendants should have, as did Jerry Foster, challenged the juror for cause because of his prior service. Whether they would have preserved the error, despite that failure, had they joined in Jerry Foster’s peremptory challenge to the juror and thereafter exhausted their peremptory challenges, we need not decide, for by refusing to join in that challenge they waived any objection based on the juror’s prior service (People v Cosmo,
Both defendants argue also that the evidence was insufficient to sustain their respective convictions. In reviewing legal sufficiency we are required to view the evidence , in the light most favorable to the prosecution and decide whether a rational trier of fact could have found the elements of the crime proved beyond a reasonable doubt (Matter of Anthony M.,
Although Fred Foster did not take the stand, his statement in which he admitted that he was at the scene and saw the stabbing and that he had been looking for the victim was
With respect to Gregory Reed, however, the situation is quite different. He did testify and his testimony was that he had been painting his apartment and learned about the incident from others but had nothing to do with it. That testimony was consistent with his prior statements to the police, with the statements of Fred Foster and Jerry Foster, both of whom made statements which were introduced in evidence and both of whom stated that Gregory Reed was not present when the victim was stabbed, and with the testimony of eyewitness Donald Mason that none of the three defendants were involved. Pierce testified, as already noted, that when he passed the scene he saw Fred Foster, but continued on and went directly to Gregory Reed’s apartment, where he found Reed painting, and that Fred Foster came in a little while later.
The only witness who identified Reed as a participant in the stabbing was Jashel Leslie. But he conceded that for some time prior to the incident he claimed to have witnessed he had been drinking and smoking marihuana, and his testimony not only as to the time of the incident but also as to the location of the crime scene, as to what he did after he witnessed the crime, and as to the event itself were all “involved in ‘hopeless contradictions’ ” (People v Ledwon,
We have considered the other issues raised by defendant Fred Foster and find them to be either unpreserved or without merit.
Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Alexander and Kane
Order modified, etc.
Notes
Designated pursuant to NY Constitution, article VI, § 2.