NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
February 19, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
GERALD GORDON, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered December 21, 2006, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him to an aggregate term of 25 years, unanimously reversed, on the law, and the matter remanded for a new trial.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Friedman, Gonzalez, Catterson, Renwick, JJ.
During voir dire of prospective jurors, after defense counsel had exercised his peremptory challenges, the court permitted the prosecutor to exercise a peremptory challenge to a panelist who had already been accepted by the defense and seated as a juror. However, CPL 270.15(2) precludes the People from challenging a prospective juror remaining in the jury box after a defendant has exercised his or her peremptory challenges. Because defendant was thereby deprived of a juror he wished to have seated, and because the court did not provide him with a remedy, such as allowing him to re-exercise his peremptory challenges, we find that he was significantly prejudiced, such that a new trial is required (see People v McQuade, 110 NY 284 ; compare e.g. People v Levy, 194 AD2d 319, 320-321 , appeal dismissed 82 NY2d 890  [court's remedy prevented any prejudice]).
We reject defendant's challenge to his first-degree robbery conviction.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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