Abuse of Discretion in Disallowing Jury Challenge Required Reversal of Conviction

In reversing a conviction because of the trial court’s refusal to consider an “untimely” peremptory challenge, the Second Department wrote:

During the second round of voir dire, after questioning of the second group of prospective jurors was completed and each side had exercised challenges for cause, the Supreme Court asked defense counsel if he wished to exercise any peremptory challenges, and defense counsel responded, “No.” Seconds later, as the court named the first three prospective jurors in the group to be assigned seats, defense counsel interrupted, apologizing, and explained that he had intended to exercise a peremptory challenge against one of the remaining prospective jurors in that group, prospective juror number four. Although that prospective juror was not yet assigned a seat and the reuest was made just moments after defense counsel mistakenly accepted all of the remaining prospective jurors in that group, the court denied defense counsel’s request to challenge that juror as untimely. Under these circumstances, where there was no discernable interference or undue delay caused by defense counsel’s momentary oversight, the Supreme Court improvidently exercised its discretion in denying defense counsel’s request to challenge the prospective juror …. Since a trial court’s improper denial of a peremptory challenge mandates automatic reversal …, we must reverse the conviction and order a new trial ….  People v Parrales, 2013 NY Slip Op 02417, 2011-05827, Ind No 1194/10, 2nd Dept 4-10-13