Opinion
January 11, 1993
Appeal from the Supreme Court, Westchester County (Cowhey, J.).
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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 361; People v Maddox, 175 A.D.2d 183; People v. Moore, 172 A.D.2d 778-779; People v. Mentz, 170 A.D.2d 541; People v. Lawrence, 159 A.D.2d 518 -519; see also, People v. Webster, 177 A.D.2d 1026; cf., People v. Bosket, 168 A.D.2d 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 F.2d 931, 934; People v. O'Rama, 78 N.Y.2d 270, 276-277; People v. Boyne, 174 A.D.2d 103, 107; People v. Miller, 163 A.D.2d 491; People v. Carballo, 158 A.D.2d 701, 704). Rosenblatt, J.P., Ritter, Pizzuto and Santucci, JJ., concur.