PEOPLE v. GORDON (2009)

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.

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 N.Y. 284, 18 N.E. 156 [1888];  compare e.g. People v. Levy, 194 A.D.2d 319, 320-321, 598 N.Y.S.2d 231 [1993], appeal dismissed 82 N.Y.2d 890, 610 N.Y.S.2d 156, 632 N.E.2d 466 [1993] [court's remedy prevented any prejudice] ).

We reject defendant's challenge to his first-degree robbery conviction.