PEOPLE v. BUTLER (2007)

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. John H. BUTLER, Defendant-Appellant.

Decided: December 21, 2007

PRESENT: HURLBUTT, J.P., MARTOCHE, FAHEY, PERADOTTO, AND GREEN, JJ.

Stephen Bird, Rochester, for Defendant-Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.

Defendant appeals from a judgment convicting him following a jury trial of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ). Defendant contends that County Court committed reversible error in failing to comply with CPL 270.15(1)(a), which requires that prospective jurors seated in the jury box “shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors in the action.” We are unable to discern from the record before us whether the prospective jurors were sworn in compliance with CPL 270.15(1)(a) before the jurors and alternate jurors ultimately were selected for trial. We therefore hold the case, reserve decision and remit the matter to County Court for a reconstruction hearing to determine whether the prospective jurors were sworn in compliance with that statute (see generally People v. Linnan, 23 A.D.3d 1013, 805 N.Y.S.2d 206).

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Orleans County Court for a reconstruction hearing.

MEMORANDUM:

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