People v. Broderick — 255 A.D.2d 389

Majority

p. 389

The People of the State of New York, Respondent, v Kyle Broderick, Appellant.

[679 NYS2d 847]

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 22, 1994, convicting him of

p. 390

robbery in the first degree, upon a jury verdict, and imposing sentence.

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

The court committed reversible error when, after the defense counsel made his peremptory challenges, it permitted the prosecutor to belatedly exercise a peremptory challenge to a still unsworn, prospective juror (see, CPL 270.15 [2]; People v McQuade, 110 NY 284 ; People v Lebron, 236 AD2d 423 ; People v De Conto, 172 AD2d 684 , affd 80 NY2d 943 ; see also, People v Alston, 88 NY2d 519 ).

Further, we note that the court erred in refusing to charge that a reasonable doubt could arise from a lack of evidence as well as from the evidence presented (see, People v Roldos, 161 AD2d 610 ). Bracken, J. P., Pizzuto, Friedmann and Luciano, JJ., concur.

Cases cited

People v. McQuade 110 NY 284 N.Y. 1888-10-02 p. 390
People v. Conto 80 NY2d 943 N.Y. 1992-10-15 p. 390
People v. Alston 88 NY2d 519 N.Y. 1996-06-28 p. 390
People v. Roldos 161 AD2d 610 N.Y. App. Div. 1990-05-07 p. 390