PEOPLE v. COTTON (2009)

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 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further reject defendant's contention that the indictment was jurisdictionally defective (see generally People v. Ray, 71 N.Y.2d 849, 527 N.Y.S.2d 740, 522 N.E.2d 1037), and we conclude that defendant waived his right to seek dismissal of the indictment on speedy trial grounds (see People v. Woody, 24 A.D.3d 1300, 806 N.Y.S.2d 820, lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 782, 857 N.E.2d 77).   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 N.Y.2d 358, 363-364, 729 N.Y.S.2d 51, 753 N.E.2d 846).   Because defendant exhausted his peremptory challenges and was forced to excuse that juror for cause, reversal is required (see People v. Papineau, 19 A.D.3d 1149, 1150, 796 N.Y.S.2d 491).   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.

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

MEMORANDUM: