PEOPLE v. PRICE (2019)

DECISION & ORDER

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, and the matter is remitted to the Supreme Court, Queens County, for a new trial.

During voir dire, after the questioning of a group of jurors was completed and each side had the opportunity to exercise challenges for cause with respect to that group, the Supreme Court asked whether the People had any peremptory challenges.  The People responded that they did not, and the court asked defense counsel the same question.  Defense counsel asked, “We are looking at what numbers?,” and the court responded, “We are looking at one and four.”  The court named prospective juror number one to be assigned a seat and said, “We now have ten, need two.  Looking at Chavez—-,” when defense counsel interrupted, stating that he had made an error and had intended to exercise a peremptory challenge to prospective juror number one.  Defense counsel acknowledged that the challenge was “a couple of seconds” late, and requested permission to excuse prospective juror number one.  The court summarily denied the request.

The defendant contends that the Supreme Court improvidently exercised its discretion in denying his belated peremptory challenge.  We agree.  Under CPL 270.15, “the decision to entertain a belated peremptory challenge is left to the discretion of the trial court” (People v. Jabot, 93 A.D.3d 1079, 1081, 941 N.Y.S.2d 311).  Where a belated peremptory challenge to as-yet unsworn prospective jurors “would interfere with or delay the process of jury selection,” it is a proper exercise of the court's discretion to refuse to permit the challenge (id. at 1081, 941 N.Y.S.2d 311).  However, where there is “no discernable interference or undue delay caused by defense counsel's momentary oversight that would justify [the court's] hasty refusal to entertain [the] defendant's challenge,” it is an improvident exercise of discretion to deny it (id.).  Here, the delay in challenging prospective juror number one was de minimis (see People v. Viera, 164 A.D.3d 1277, 1278–1279).  There was no discernable interference or undue delay caused by defense counsel's momentary oversight, and the voir dire of the next subgroup of jurors was still to be conducted (see id. at 1279, 82 N.Y.S.3d 112; People v. Scerbo, 147 A.D.3d 1497, 1498, 47 N.Y.S.3d 607; People v. Rosario–Boria, 110 A.D.3d 1486, 1487, 972 N.Y.S.2d 798; People v. Parrales, 105 A.D.3d 871, 872, 962 N.Y.S.2d 663; People v. Jabot, 93 A.D.3d at 1081, 941 N.Y.S.2d 311; cf. People v. Monroe, 118 A.D.3d 916, 987 N.Y.S.2d 243; People v. Brown, 52 A.D.3d 248, 248, 859 N.Y.S.2d 175; People v. Leakes, 284 A.D.2d 484, 484, 726 N.Y.S.2d 869).  Since a trial court's improper denial of a peremptory challenge mandates reversal, we reverse the judgment and order a new trial (see People v. Hecker, 15 N.Y.3d 625, 661–662, 917 N.Y.S.2d 39, 942 N.E.2d 248; People v. Marshall, 131 A.D.3d 1074, 1075, 17 N.Y.S.3d 140).

In light of our determination, we need not address the defendant's remaining contentions.

MASTRO, J.P., BALKIN, IANNACCI and CHRISTOPHER, JJ., concur.