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Granting additional peremptory challenges 
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

The Criminal Procedure Law sets forth the number of peremptory challenges that each side is allowed in a criminal trial, which depends on the offense level charged: the higher the crime, the more challenges that are permitted. For example, with a class B felony, prosecution and defense are each allowed 15 peremptory challenges, while with a class A misdemeanor, each side gets 3 peremptories. 


In some trials, extraordinary ones, one party or the other might request the court to grant additional peremptory challenges. Is this permissible? 


Caselaw has referenced the issue on several occasions, but has not definitively ruled on it. In People v King, 36 NY2d 59 (1975), the prosecution sought a writ of prohibition against the trial judge for granting the defense 30 challenges, rather than the 20 that were provided by statute. The Court of Appeals held that a writ was improper. See also People v Anthony, 24 NY2d 696 (1969) (defense not aggrieved by being granted ten additional peremptories). 


The issue has arisen where the defendant on an appeal challenged the trial judge’s denial of a challenge for cause. The improper denial of a challenge for cause can be raised only when the defense exhausts all of its peremptory challenges, CPL 270.20. The defense in People v Miles, 55 AD3d 955 (3d Dept 2008), exhausted its peremptory challenges, but the trial judge had granted the defense two additional peremptories during a “meaningful point in the jury selection process.” This granting of additional challenges cured any error. 


In People v Perez, 37 AD3d 152 (1st Dept 2007), defendant’s challenge of a prosecution peremptory challenge under Batson v Kentucky arose. In reversing the conviction, the First Department noted that the trial judge’s error could have been remedied in various ways, including granting to the defense additional peremptory challenges. 


In People v McNeil, 39 AD3d 206 (1st Dept 2007), where there was a deviation from the proper order of challenges, the trial court denied the defense request for additional peremptory challenges. The improper jury selection process resulted in the conviction being reversed on appeal. 


A trial judge may, of course, deny a request for additional challenges. People v Thompson, 59 AD3d 1115 (4th Dept 2009).


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