BUFFALO, N.Y. - A State Supreme Court Judge has ruled that Matthew Kuzdzal, charged with killing his then-girlfriend's young son, will remain in jail despite the fact that an appeals court has ordered a new trial in the case.

Justice Christopher Burns issued the ruling during a bail hearing Thursday morning.

Kuzdzal was found guilty two years ago of killing his girlfriend's son. The New York State Supreme Court Appellate Division, Fourth Judicial, reversed the jury's verdict and ordered a new trial. The decision is based on juror bias.

Eain Brooks was five-years-old when he died in September 2013. He was being watched by his mother's boyfriend, Matthew Kuzdzal when he suffered multiple injuries leading to his death. The family called out Erie County Child Protective Services for not acting on their calls to investigate abuse of the child in the past.

According to the decision, "one of defendant's friends," who had been observing the proceedings, reported that she had overheard two jurors using a derogatory term to refer to defendant. The court called the observer to the witness stand, where she identified two jurors whom she observed, "outside smoking a cigarette talking about defendant being a scumbag and in the back row laughing and making faces."

Based on those observations, defense counsel asked the court to perform an inquiry of the two jurors. The prosecutor opposed an inquiry, and instead asked the court to, "make a ruling as to whether it found this description credible first."

The court denied the defendant's request and stated: "I don't – – I don't believe that an inquiry of the juror is necessary or appropriate here . . . based on what I heard." The court failed to "conduct an inquiry of the jurors."

Kuzdzal was convicted of murder (depraved indifference killing of a person less than 11 years old, and predatory sexual assault against a child).

2 On Your Side's consulted defense attorney Thomas Eoannou, who is not associated with this case, about the decision. "It is in the court's discretion, but the appellate division in reviewing what occurred, said there was enough there that the court should've inquired of the jurors."

Eoannou said because two of the five Appellate judges disagreed with the decision for a new trial, a higher court could be called on to let a new trial happen or uphold the original conviction.

Voting for the new trial were Appellate Shirley Troutman, Henry J. Scudder and Brian DeJoseph. Justices Nancy E. Smith and Erin Peradotto were in the dissent.

Acting Erie County District Attorney Michael J. Flaherty, Jr. said of the case: "we are reviewing the decision and evaluating our options." They have 30 days to respond.

Kuzdzal Decision by WGRZ-TV on Scribd