Opinion
Argued September 15, 1983
Decided October 18, 1983
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, STEPHEN SMYK, J.
Samuel J. Castellino, Public Defender ( Joseph J. Balok, Jr., of counsel), for appellant.
James T. Hayden, District Attorney, for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed ( 90 A.D.2d 565).
On May 18, 1981 defendant was convicted after a jury trial of murder in the second degree, robbery in the first degree and burglary in the first degree. On this appeal he contends that the judgment should be reversed and a new trial ordered because widespread pretrial publicity prevented him from receiving a fair trial. The issue was first presented by a motion for a change of venue to the Appellate Division before trial. It denied the application and we find no error in the court's ruling at that stage of the proceedings. On the direct appeal from the judgment, defendant now renews his claim. The record on appeal does not contain a transcript of the jury selection proceedings. Thus, although there was extensive pretrial publicity concerning the homicide and defendant's role in it, there is no record from which we may determine that counsel was unable to select a fair and impartial jury (see People v Di Piazza, 24 N.Y.2d 342). Proper procedure after denial of a motion for change of venue requires that a defendant attempt to select an impartial jury and that the proceedings be stenographically transcribed. At that time counsel could have attempted to establish by his questions and the answers to them that the extensive publicity made it impossible to select an impartial jury, if such was the fact, and upon said record the motion for change of venue could have been renewed and given proper consideration by the court (see CPL 230.20, subd 2; 255.20, subd 3; People v Shedrick, 83 A.D.2d 988). An added factor for consideration would be whether or not the defendant exercised all of his allotted peremptory challenges in selecting a jury.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed in a memorandum.