| People v Barreto |
| 2010 NY Slip Op 01498 [70 AD3d 959] |
| February 16, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisBarreto, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, Suzanne H. Sullivan, and John McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin,J.), rendered December 13, 2007, convicting him of endangering the welfare of a child, upon ajury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matteris remitted to the Supreme Court, Queens County, for the purpose of entering an order in itsdiscretion pursuant to CPL 160.50.
Although, viewing the evidence in the light most favorable to the prosecution (see Peoplev Hawkins, 11 NY3d 484 [2008]), we find that the evidence was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt, we nevertheless conclude that thejudgment of conviction must be reversed.
During voir dire, a prospective juror indicated that, due to an incident in which he had beenthe victim of a crime, he was unsure whether he could be objective or impartial. The trial courtdenied the defendant's challenge for cause, and the defendant then exercised a peremptorychallenge to remove the prospective juror. Thereafter, the defendant exhausted his peremptorychallenges.
As the People correctly concede, the prospective juror's statement revealed "a state of mindlikely to preclude him from rendering an impartial verdict based upon the evidence adduced atthe trial" (CPL 270.20 [1] [b]; see People v Chambers, 97 NY2d 417, 419 [2002];People v Arnold, 96 NY2d 358, 362 [2001]). Therefore, the challenge for cause shouldhave been allowed (see People v Garrison, 30 AD3d 612, 613 [2006]). Since thedefendant subsequently exercised a peremptory challenge to remove the prospective juror, andlater exhausted his allotment of peremptory challenges, the conviction must be reversed(id.). Although, ordinarily, the defendant would be entitled to a new trial, since healready has completed the sentence imposed on his conviction of endangering the welfare of achild, dismissal of the indictment rather than a new trial is appropriate (see People vFlynn, 79 NY2d 879, 882 [1992]; People v Maio Ni, 293 AD2d 552, 553 [2002];People v Franklin, 79 AD2d 611, 613 [1980]).
In light of the foregoing, we need not reach the defendant's remaining contentions. Prudenti,P.J., Mastro, Florio and Austin, JJ., concur.