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

The PEOPLE, etc., Respondent, v. Luis CAMACHO, Appellant.

Decided: February 20, 2001

LAWRENCE J. BRACKEN, ACTING P.J., GLORIA GOLDSTEIN, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ. M. Sue Wycoff, New York, N.Y. (Eric J. Gottlieb and Lawrence T. Hausman of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Noreen Healey of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered July 31, 1998, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant contends that the denial of his challenge for cause of a prospective juror was reversible error.   We agree.

During the voir dire, a prospective juror, in response to the question as to whether she would be more sympathetic to testimony of an undercover police officer than another witness, stated:  “The more I sit here and think about it, I think I would be.   I don't think I would be very objective, to be honest with you”.   No unequivocal assurance of impartiality was obtained from this juror (see, People v. Johnson, 94 N.Y.2d 600, 709 N.Y.S.2d 134, 730 N.E.2d 932).   The defendant's challenge for cause to this juror was denied.   Because the defendant then exercised a peremptory challenge against the prospective juror, and eventually exhausted his allotment of peremptory challenges, his conviction must be reversed and a new trial ordered (see, People v. Jackson, 265 A.D.2d 342, 697 N.Y.S.2d 288;  People v. Zachary, 260 A.D.2d 514, 689 N.Y.S.2d 156).

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