People v. Levy

—Order, Supreme Court, New York County (Jerome Hornblass, J.), entered August 7, 1991, granting defendant’s motion pursuant to CPL 330.30 to set aside his conviction for criminal possession of a weapon in the third degree (Penal Law § 265.02) and criminal possession of marihuana in the first degree (Penal Law § 221.30), reversed, on the law, the motion denied, the jury verdict reinstated, and the matter remanded for further proceedings consistent with this memorandum decision.

The facts are fairly set forth in Justice Rubin’s dissenting opinion. The court erred in granting defendant’s CPL 330.30 motion since deviation from the statutory order of juror selection (CPL 270.15 [2]) is not per se reversible error without a showing of prejudice (People v West, 38 AD2d 548, affd 32 NY2d 944, overruled in part on other grounds People v Harris, 57 NY2d 335, 350, cert denied 460 US 1047; People v Williams, 20 AD2d 622, affd 14 NY2d 948). Having correctly determined that this case is "factually distinguishable” from cases in which the substantial rights of a defendant were implicated by the violation of CPL 270.15 (2), the court should have concluded that its own harmless error did not provide grounds for setting aside the guilty verdict in view of the overwhelming evidence of defendant’s guilt (CPL 330.30 [1]).

Relying on People v McQuade (110 NY 284) and its progeny, defendant persuaded the court that CPL 270.15 (2) stood as an absolute bar to the peremptory challenge at issue here. In McQuade (supra), the Court of Appeals explained that the order in which peremptory challenges are exercised implicates a defendant’s substantial rights in the following ways: (1) it relieves the defendant from wasting his challenges on prospective jurors who are also unacceptable to the prosecution; (2) it secures the presence on the jury of persons for whom the defendant has a preference and who are not challenged by the prosecutor in the first instance; (3) it precludes the prosecution from excluding prospective jurors merely because the defendant has manifested acceptance of them. Since the prosecutor was permitted here to exercise a belated peremptory challenge on the basis of newly discovered evidence that a prospective juror was potentially biased and defendant was afforded an opportunity de novo to exercise all of his peremptory challenges, the forms of prejudice identified by the McQuade Court were entirely obviated in this case.

The court in this case permitted the People to exercise a belated peremptory challenge in order to rectify its conceded error in failing to elicit, before any challenges were taken, information pertaining to a juror’s ability to render an impartial verdict. Upon further inquiry of the juror, it came to light that the juror harbored resentment against the police officers who were involved in his false arrest. The court concluded that fundamental fairness required that the People be permitted to exercise a peremptory challenge which they would have been entitled to exercise were it not for the court’s error.

Despite the particular circumstances giving rise to the prosecutor’s belated challenge, our dissenting colleague asserts that defendant was prejudiced because the prosecutor might have challenged the juror merely because defendant had found him acceptable. This position is purely speculative and might be applied to any juror selected. It is obvious that the prosecutor’s challenge was made in good faith, based solely on the prospective juror’s disclosure that he resented the officers who falsely arrested him. Indeed, the prosecutor exercised the peremptory challenge in lieu of her well-founded, though unsuccessful, challenge to that juror for cause.

In any case, to prevent the People from gaining any tactical advantage as a result of the belated peremptory challenge, the court permitted defendant to exercise his peremptory challenges anew while requiring the People to adhere to their original challenges. With the exception of the single belated challenge, the People could not anticipate defendant’s challenges in making their own. Defendant, on the other hand, had an opportunity to reconsider all of his peremptory chailenges in light of the prosecutor’s final peremptory challenge. Essentially, the parties were placed in the same position they would have been in had the information regarding the biased juror been available before any challenges were exercised.

By returning the parties to status quo ante, the court insured that both parties would be fairly treated in spite of its oversight, absent which the prospective juror would certainly have been excused. Nevertheless, defendant claims he was prejudiced by the excusal of that juror because he was a young black male who was not likely to be racially prejudiced against him. Defendant’s preference for securing the presence of an additional member of his own race on the jury is not a legally cognizable interest (see, People v Kern, 75 NY2d 638).

In conclusion, we emphasize that our reversal in no way signifies our approval of the procedure employed by the court, which violated CPL 270.15 (2). Indeed, we agree with our dissenting colleague that the court should have convened a new panel after the prospective juror was interviewed rather than permitting the belated peremptory challenge. However, once this error occurred and defendant was convicted by a jury selected under circumstances in which it cannot be concluded that defendant was prejudiced, it was incumbent upon the court to deny defendant’s motion to set aside the verdict. The court reluctantly relinquished this duty only because it believed that the peremptory challenge at issue constituted per se error.

We disagree. On the face of this record, defendant has not demonstrated how the court’s actions were inherently prejudicial to his substantial rights. Accordingly, we reverse. Concur —Sullivan, J. P., Wallach, Kupferman and Kassal, JJ.