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People v. Cotton

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


November 13, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MAURICE COTTON, APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered February 4, 2008. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 6, 2010

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

Memorandum

Defendant appeals from a judgment convicting him following a jury trial of various crimes, the most serious of which was attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We further reject defendant's contention that the indictment was jurisdictionally defective (see generally People v Ray, 71 NY2d 849 [1988]), and we conclude that defendant waived his right to seek dismissal of the indictment on speedy trial grounds (see People v Woody, 24 AD3d 1300 [2005], lv denied 7 NY3d 852 [2006]). We agree with defendant, however, that Supreme Court erred in denying his challenge for cause to a prospective juror inasmuch as the statements of the prospective juror did not establish an unequivocal assurance of impartiality (see People v Arnold, 96 NY2d 358, 363-364 [2001]). Because defendant exhausted his peremptory challenges and was forced to excuse that juror for cause, reversal is required (see People v Papineau, 19 AD3d 1149, 1150 [2005]). In view of our determination granting a new trial, we do not address the remaining contentions of defendant, including those raised in his pro se supplemental brief.

Present---Hurlbutt, J.P., Martoche, Smith, Carni and Pine, JJ.

20091113

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