Opinion
May 9, 1994
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is affirmed.
The defendant's contention that a new trial is warranted because he was not personally present during the trial court's sidebar interview with a prospective juror is without merit. This argument is based on the rule of law announced by the Court of Appeals in People v. Antommarchi ( 80 N.Y.2d 247). Since this case was decided after the defendant's trial had been completed, the Antommarchi rule, which is not retroactive, does not apply (see, People v. Toal, 197 A.D.2d 650; People v. Mitchell, 80 N.Y.2d 519; People v. Hannigan, 193 A.D.2d 8).
We further find that the trial court properly disqualified for cause a prospective juror whose brother was being prosecuted by the Kings County District Attorney's office in the same court and at the same time as the defendant's trial. On the day she was questioned, the juror indicated that she couldn't be present for her brother's case because of the instant case. Under these circumstances, we find that the trial court properly determined that the juror fell within the scope of CPL 270.20 (1) (c) in such a manner as would likely preclude her from rendering an impartial verdict (see, People v. Sellers, 73 A.D.2d 697; People v. Purcell, 103 A.D.2d 938; People v. Provenzano, 50 N.Y.2d 420, 424; People v. Branch, 46 N.Y.2d 645, 649).
Viewing the evidence, in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15). Balletta, J.P., Miller, Hart and Krausman, JJ., concur.