PEOPLE v. HA

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

The PEOPLE of the State of New York, Respondent, v. Duong H. HA, Appellant.

Decided: May 26, 2005

Before:  PETERS, J.P., MUGGLIN, LAHTINEN and KANE, JJ. Mitch Kessler, Cohoes, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered September 13, 2002, upon a verdict convicting defendant of the crime of assault in the second degree.

Upon our earlier consideration of this appeal, we withheld decision and remitted the matter to County Court for a reconstruction hearing in order to enable us to resolve defendant's Antommarchi claim (14 A.D.3d 877, 787 N.Y.S.2d 731 [2005];  see People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992] ).

Upon remittal, County Court was unable to establish that all venire members with whom sidebar colloquies were held were excused for cause or excused upon the peremptory challenge of the People.   In light of this failure of proof, we reverse and remit for a new trial on the first count of the indictment (see People v. Roman, 88 N.Y.2d 18, 28, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996];  People v. Lucious, 285 A.D.2d 968, 970, 730 N.Y.S.2d 384 [2001], lv. denied 97 N.Y.2d 657, 737 N.Y.S.2d 58, 762 N.E.2d 936 [2001] ).1

ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Broome County for a new trial on count one of the indictment.

FOOTNOTES

1.   A second count of the indictment, charging defendant with endangering the welfare of a child, was dismissed after the jury reached a verdict on the first count.

PETERS, J.P.

MUGGLIN, LAHTINEN and KANE, JJ., concur.

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