People v. Hewitt , 189 A.D.2d 781 ( 1993 )

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cowhey, J.), rendered March 28, 1989, convicting him of manslaughter in the second degree, attempted manslaughter in the first degree, and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, a new trial is ordered with respect to the charges of criminal possession of a weapon in the third degree (two counts), and the indictment is otherwise dismissed, without prejudice to the People to re-present any appropriate charges to a Grand Jury (see, People v Beslanovics, 57 NY2d 726). No questions of fact have been raised or considered.

The trial court erred in refusing to dismiss a prospective juror for cause when that juror did not unequivocally state that he would not be influenced by his feelings and would render an impartial verdict (see, People v Blyden, 55 NY2d 73, 78). Because the defense counsel then exercised a peremptory challenge against that prospective juror, and eventually exhausted his allotment of peremptory challenges, the defendant’s conviction must be reversed (see, People v Torpey, 63 NY2d 361; People v Maddox, 175 AD2d 183; People v Moore, 172 AD2d 778-779; People v Mentz, 170 AD2d 541; People v Lawrence, 159 AD2d 518-519; see also, People v Webster, 177 AD2d 1026; cf., People v Bosket, 168 AD2d 833, 834).

Further, during jury deliberations, the court responded to at least one note from the jury without disclosing its contents, and in another instance responded to a note without giving the defense an opportunity to be heard before the court made

its response. This was error, and, under the circumstances of this case, mandates reversal and a new trial (see, United States v Ronder, 639 F2d 931, 934; People v O'Rama, 78 NY2d 270, 276-277; People v Boyne, 174 AD2d 103, 107; People v Miller, 163 AD2d 491; People v Carballo, 158 AD2d 701, 704). Rosenblatt, J. P., Ritter, Pizzuto and Santucci, JJ., concur.