People v. Ha

Peters,J.P. Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered September 13, 2002, upon a verdict convicting defendant of the crime of assault in the second degree. Upon our earlier consideration of this appeal, we withheld decision and remitted the matter to County Court for a reconstruction hearing in order to enable us to resolve defendant’s Antommarchi claim (14 AD3d 877 [2005]; see People v Antommarchi, 80 NY2d 247 [1992]). Upon remittal, County Court was unable to establish that all venire members with whom sidebar colloquies were held were excused for cause or excused upon the peremptory challenge of the People. In light of this failure of proof, we reverse and remit for a new trial on the first count of the indictment (see People v Roman, 88 NY2d 18, 28 [1996]; People v Lucious, 285 AD2d 968, 970 [2001], lv denied 97 NY2d 657 [2001]).* Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Broome County for a new trial on count one of the indictment. Footnotes [*] A second count of the indictment, charging defendant with endangering the welfare of a child, was dismissed after the jury reached a verdict on the first count.