SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 13, 2009
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered February 4, 2008.
PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, CARNI, AND PINE, JJ.
MEMORANDUM AND ORDER
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.
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 ).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). We further reject defendant's contention that the indictment was jurisdictionally defective (see generally People v Ray, 71 NY2d 849), 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, lv denied 7 NY3d 852).
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).
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). 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.
Patricia L. Morgan Clerk of the Court
© 1992-2011 VersusLaw Inc.