People v Butler

People v Butler 2007 NY Slip Op 10334 [46 AD3d 1446] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent, v John H. Butler, Appellant.

—[*1] Stephen Bird, Rochester, for defendant-appellant.

Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), for respondent.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered November 21, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.

It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Orleans County Court for a reconstruction hearing in accordance with the following memorandum: Defendant appeals from a judgment convicting him following a jury trial of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). Defendant contends that County Court committed reversible error in failing to comply with CPL 270.15 (1) (a), which requires that prospective jurors seated in the jury box "shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors in the action." We are unable to discern from the record before us whether the prospective jurors were sworn in compliance with CPL 270.15 (1) (a) before the jurors and alternate jurors ultimately were selected for trial. We therefore hold the case, reserve decision and remit the matter to County Court for a reconstruction hearing to determine whether the prospective jurors were sworn in compliance with that statute (see generally People v Linnan, 23 AD3d 1013 [2005]). Present—Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.