*1163Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered January 9, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (two counts).
It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the law, a new trial is granted on count three of the indictment and count two of the indictment is dismissed without prejudice to the People to represent any appropriate charges under that count of the indictment to another grand jury.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the second degree (Penal Law § 125.25 [2], [3] [depraved indifference and felony murder]). The evidence at trial established that defendant shot the victim during the course of an attempted robbery, but there were three distinct versions of the manner in which the shooting occurred. Two witnesses testified that defendant shot the victim in the back as the victim ran away. In pretrial statements to a police investigator and defendant’s sister, defendant stated that he fired at the victim after the victim resisted the robbery attempt by pulling out a gun and pointing it at defendant. At trial, however, defendant testified that he ran away when the victim pulled out a gun and started shooting at him and that he fired backward in the victim’s direction. The jury acquitted defendant of intentional murder but found him guilty of depraved indifference murder and felony murder.
We agree with defendant that reversal is required because County Court erred in failing to apply the proper standard in discharging a sworn juror over defendant’s objection, based on the statement of the juror that his brother was imprisoned on “trumped-up charges.” “[T]he standard for disqualifying a sworn juror over defendant’s objection [pursuant to CPL 270.35 (1)] is satisfied only ‘when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict’ ” (People v Buford, 69 NY2d 290, 298 [1987]; see People v Anderson, 70 NY2d 729, 730 [1987]; *1164People v Telehany, 302 AD2d 927, 928 [2003]). The court failed to apply that standard here.
We further agree with defendant, and the People correctly concede, that the evidence is legally insufficient to support the conviction of depraved indifference murder. The one-on-one shooting was not “marked by uncommon brutality” (People v Payne, 3 NY3d 266, 271 [2004], rearg denied 3 NY3d 767 [2004]), “or any other hallmarks of wanton recklessness necessary to demonstrate ‘circumstances evincing a depraved indifference to human life’ ” (People v Dudley, 31 AD3d 264, 264 [2006], lv denied 7 NY3d 866 [2006]). Rather, while there is a rational view of the evidence that would support a finding that defendant’s conduct was reckless, we conclude that such conduct “did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder” (People v McPherson, 6 NY3d 202, 216; see People v Packer, 31 AD3d 1169, 1170 [2006], lv denied 7 NY3d 869 [2006]). We note, however, that the evidence is legally sufficient to support a conviction of -the lesser included offense of manslaughter in the second degree (Penal Law § 125.15 [1]; see Packer, .31 AD3d at 1170). Because there must be a new trial on the felony murder count based on the court’s error in discharging the sworn juror (see People v Cargill, 70 NY2d 687, 689 [1987]), the depraved indifference murder count is dismissed without prejudice to the People to re-present any appropriate charges under that count to another grand jury (see People v Gonzalez, 61 NY2d 633, 635 [1983]; People v Williams, 210 AD2d 914, 914-915 [1994]).
All concur except Scudder, P.J., who dissents and votes to affirm in the following memorandum.