PEOPLE v. SANTIAGO (2000)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered April 27, 1998, convicting him of manslaughter in the first degree, upon a jury verdict, and sentencing him to a determinate term of 25 years imprisonment.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  as so modified, the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for resentencing by a different Justice of the Supreme Court, Kings County.

 The defendant contends that the Supreme Court erred in denying his challenge for cause of a juror who admitted having arthritis in his back.   However, that juror conformed to all of the qualifications specified in Judiciary Law § 510, and no questions were raised with regard to his impartiality (see, Judiciary Law § 510, as amended by L. 1995, ch. 86).   The Supreme Court stated that if the juror's back began to hurt from sitting too long, it would accommodate him by taking frequent breaks (see, People v. Guzman, 76 N.Y.2d 1, 556 N.Y.S.2d 7, 555 N.E.2d 259).   Thus, the Supreme Court correctly denied the defendant's challenge for cause.

 However, the case must be remitted to the Supreme Court, Kings County, for resentencing.   The remarks made by the Supreme Court demonstrated that it considered crimes of which the defendant was acquitted as a basis for sentencing (see, People v. Grant, 191 A.D.2d 297, 595 N.Y.S.2d 38;  People v. Coward, 100 A.D.2d 628, 473 N.Y.S.2d 591).

MEMORANDUM BY THE COURT.