PEOPLE v. BIRCH

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The trial court erred in refusing to dismiss three prospective jurors for cause when they did not unequivocally state that they would not be influenced by their feelings and would render an impartial verdict (see, People v Blyden, 55 N.Y.2d 73, 76; People v Culhane, 33 N.Y.2d 90). Because defense counsel then exercised peremptory challenges against those prospective jurors, and eventually exhausted his allotment of peremptory challenges, the defendant's conviction must be reversed (see, People v Torpey, 63 N.Y.2d 361; see also, People v Hewitt, 189 A.D.2d 781).

We have reviewed the defendant's remaining contentions, including his claim that his sentence was excessive, and find them to be without merit (see, People v Coleman, 82 N.Y.2d 415, 432). Balletta, J.P., Copertino, Altman and Goldstein, JJ., concur.