172 A.D.2d 684; 570 N.Y.S.2d 964, *;

1991 N.Y. App. Div. LEXIS 5569, **

The People, etc., respondent, v. Stephen De Conto, appellant (Ind. Nos. 80-00309-03 and 80-00311-01)

Nos. 90-01137, 90-01138 (formerly 2836E and 2836AE)

Supreme Court of New York, Appellate Division, Second Department

172 A.D.2d 684; 570 N.Y.S.2d 964; 1991 N.Y. App. Div. LEXIS 5569

January 24, 1991, Argued

April 15, 1991

SUBSEQUENT HISTORY: [**1] Leave to Appeal Granted January 15, 1992.

PRIOR HISTORY:

Appeal by the defendant from two judgments of the County Court, Westchester County (Nastasi, J.), both rendered June 7, 1983, convicting him of criminal possession of a controlled substance in the first degree under Indictment No. 80-00309-03 and criminal possession of a controlled substance in the third degree under Indictment No. 80-00311-01, upon jury verdicts, and imposing sentences. The appeals bring up for review the denial, after a hearing, of that branch of the defendant's omnibus motion under Indictment No. 80-00309-03 which was to suppress certain physical evidence.

DISPOSITION: ORDERED that the judgments are reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established.

COUNSEL: Joel Martin Aurnou, White Plains, New York, for appellant.

Carl A. Vergari, District Attorney, White Plains, New York (James A. Montagnino and Richard E. Weill of counsel), for respondent.

JUDGES: Guy James Mangano, P.J., Joseph J. Kunzeman, Geraldine T. Eiber, Vincent R. Balletta, Jr., JJ., concur.

OPINION: [*964] DECISION & ORDER

After the prosecutor indicated to the court that [**2] he had completed his peremptory challenges, and while defense counsel was exercising his peremptory challenges, the court permitted the prosecutor to exercise another peremptory challenge. This constituted reversible error (see, CPL 270.15[2]; People v. McQuade, 110 NY 284; People v Williams, 26 NY2d 62, 63-64; People v Walker, AD2d [2d Dept., Dec. 3, 1990]; People v McBride, 51 AD2d 554, 555).

We have considered the defendant's remaining contentions and find them to be without merit.