PEOPLE v. FELICIANO

ORDERED that the judgment is reversed, on the law, and as a matter of discretion in the interest of justice, and a new trial is ordered.

The trial court committed reversible error when, after the defense counsel made his peremptory challenges, it permitted the prosecutor to belatedly exercise a peremptory challenge to a still unsworn prospective juror ( see CPL 270.15; People v. Williams, 26 N.Y.2d 62; People v. Broderick, 255 A.D.2d 389; People v. Lebron, 236 A.D.2d 423; People v. De Conto, 172 A.D.2d 684, affd 80 N.Y.2d 943; People v. Walker, 168 A.D.2d 470; see also People v. Alston, 88 N.Y.2d 519).

The defendant's challenge to the reckless endangerment charge as a lesser-included offense of murder in the second degree ( see CPL 1.20 is unpreserved for appellate review ( see People v. Ford, 62 N.Y.2d 275, 283).

In light of our determination that a new trial is required, we do not reach the defendant's remaining contentions.

FLORIO, J.P., SCHMIDT, CRANE and COZIER, JJ., concur.