People v Day

People v Day 2007 NY Slip Op 06757 [43 AD3d 707] September 18, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

The People of the State of New York, Respondent,
v
Marcellus Day, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered May 24, 2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.

Regardless of its merit, defendant's argument that the court improperly denied his challenge for cause to a prospective juror is not a basis for reversal, because this panelist was excused through the exercise of one of the People's peremptory challenges. Thus, defendant was not prejudiced (see People v Stone, 239 AD2d 872 [1997], lv denied 90 NY2d 943 [1997]). Concur—Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.