¶1dissents and votes to affirm the judgments, with the following memorandum: By statute (CPL 270.25, subd 2, par [c]) a defendant in a trial by jury is permitted to exercise 10 peremptory challenges on the trial of an indictment for a class D or E felony. In pertinent part, subdivision 2 reads as follows: “Each party must be allowed the following number of peremptory challenges: … (c) Ten for the regular jurors in all other cases [‘D’ and ‘E’], and two for each alternate juror to be selected.” Subdivision 3 reads: “When two or more defendants* are tried jointly, the number of peremptory challenges prescribed in subdivision two is not multiplied by the number of defendants, but such defendants are to be treated as a single party. In any such case, a peremptory challenge by one or more defendants must be allowed if a majority of the defendants join in such challenge. Otherwise, it must be disallowed.” During the selection of jurors, the defendants exhausted their 10 peremptory challenges. Before doing so, however, Dixon’s attorney had asked the court to grant an additional challenge. The court said it would “use [its] discretion” on the request. After exhaustion, however, the request for an additional challenge (participated in by Dixon and Christopher only) was denied. On this premise the majority has reversed the judgment of conviction and has ordered a new trial. The facts of the case reveal that the defendants were caught in the act of burglary in broad daylight. They were carrying the fruits of the crime when apprehended. The evidence against them was overwhelming. If there was an abuse of discretion by the Trial Justice, it was harmless beyond a reasonable doubt (People v Crimmins, 36 NY2d 230), and it is difficult to conceive how an eleventh challenge could possibly have changed the ultimate result. In the concurring memorandum of Mr. Justice Hopkins, allusion is made to the peremptory challenges directed by the prosecutor to the three black prospective jurors on the panel, citing People v Thompson (79 AD2d 87). In Thompson, as with Jack Sprat and his wife in the nursery rhyme, the prosecutor “licked the platter clean” of all 12 prospective black jurors. I view that instance as one decided on the unusual fact pattern in that case, and thus ad hoc in nature; and do not feel constrained to follow it. Instead, I would adhere to the statutory definition of a peremptory challenge (CPL 270.25) which states that it “is an objection to a prospective juror for which no reason need be assigned”. Under the factual circumstances before us, to allow the appealing defendants to have a second trial is to me a complete waste of judicial time and manpower. I would affirm.
¶2 There are two defendants on this appeal. The appeal of a third defendant (Steven Hines) was severed. Hines did, however, participate in the trial.
