Opinion
May 4, 1995
Appeal from the Supreme Court, Bronx County (Fred W. Eggert, J.).
Defendant argues correctly that the trial court's refusal to permit his attorney to withdraw the peremptory challenge to juror number four, whom the prosecution did not challenge, violated his right to a jury of his choosing and was not harmless error (see, People v McQuade, 110 N.Y. 284, 294), although defendant's similar claim as to juror number seven was waived when defendant rejected the prosecution's compromise offer as to that juror (People v Hayes, 191 A.D.2d 368, 370, lv denied 82 N.Y.2d 719). The denial of defendant's application to withdraw the challenges was sufficient to preserve this issue for review (CPL 470.05).
CPL 270.15 (2) requires that the People exercise their peremptory challenges first and precludes them from challenging a prospective juror remaining in the jury box after defendant has exercised his peremptory challenges; however, a reciprocal requirement is not imposed upon defendant (cf., People v Levy, 194 A.D.2d 319, appeal dismissed 82 N.Y.2d 890 [court allowed prosecutor to exercise a belated peremptory challenge due to subsequently discovered prejudice and then allowed defendant to exercise his challenges anew such that the parties were placed in the same position as if prosecutor had made a challenge for cause at the proper time]). The trial court's determination on this issue effectively allowed the prosecution to exclude a prospective juror for no other reason than the defendant wanted them on the jury, a result the statute was designed to prevent (People v McQuade, supra).
The record fails to support defendant's contention that the court committed reversible error by excluding him from sidebar conferences where individual jurors were questioned as to their ability to serve impartially and where jurors and alternates were selected, since his waiver of that right (People v Mitchell, 80 N.Y.2d 519, 525; People v Curry, 209 A.D.2d 357, 358), allowed only after repeated consultation with court and counsel and with the instruction that he could withdraw his waiver if he wished, was knowing, intelligent and voluntary.
Inasmuch as we find reversible error in defendant's conviction after trial and vacate that judgment, the second conviction, on a plea of guilty, must also be vacated, since the trial court promised at sentencing that the sentence on the second conviction would run concurrently with that on the first (People v Boston, 75 N.Y.2d 585, 589; People v Fuggazzatto, 62 N.Y.2d 862).
Concur — Rosenberger, J.P., Rubin, Ross, Nardelli and Williams, JJ.