PEOPLE v. WAHID (1997)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered January 10, 1995, convicting him of assault in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The record clearly indicates that the defense attorney made no request to exercise a peremptory challenge against prospective juror number 12 in the first round of jury selection until after four prospective jurors, including juror number 12, were accepted by both sides and sworn.   Accordingly the defendant could no longer peremptorily challenge this juror (see, People v. Harris, 57 N.Y.2d 335, 349-350, 456 N.Y.S.2d 694, 442 N.E.2d 1205;  cf., People v. Isaac, 212 A.D.2d 635, 622 N.Y.S.2d 587).

Viewing the evidence in the light most favorable to the defendant, the court properly refused his request to charge the jury on the defense of justification concerning the use of deadly physical force to prevent or terminate a burglary pursuant to Penal Law § 35.20(3) (see, People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188).

MEMORANDUM BY THE COURT.