People v. Baity

Appellate Division of the Supreme Court of New York

People v. Baity

276 A.D.2d 282, 713 N.Y.S.2d 862, 2000 N.Y. App. Div. LEXIS 10056

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 5, 2000

StatusPublished

This text of 276 A.D.2d 282 (People v. Baity) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Baity, 276 A.D.2d 282, 713 N.Y.S.2d 862, 2000 N.Y. App. Div. LEXIS 10056 (N.Y. Ct. App. 2000).

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Opinion

Judgment, Supreme Court, New York County (Michael Obús, J.), rendered February 3, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

Defendant’s claim that the court improperly discharged a sitting juror is unpreserved. The record establishes that defendant’s counsel declined the court’s offer of further inquiry into the juror’s concerns and consented to her discharge. This was a tactical decision to be made by counsel rather than defendant (see, People v Ferguson, 67 NY2d 383, 390), and the ambiguous expression of dissatisfaction later made by defendant himself did not operate as a withdrawal of consent. Accordingly, this issue is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the juror was properly discharged, after sufficient inquiry. The juror’s statements to the court carried the obvious implication that she was in fear of retribution by defendant, whom she believed to be a resident of her neighborhood, which was also the location of the arrest. Therefore, she was grossly unqualified to continue to serve (see, People v Carrasco, 262 AD2d 50, lv denied 93 NY2d 1015).

We perceive no abuse of sentencing discretion. Concur— Nardelli, J. P., Tom, Andrias, Buckley and Friedman, JJ.

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Judgment, Supreme Court, New York County (Michael Obús, J.), rendered February 3, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

Defendant’s claim that the court improperly discharged a sitting juror is unpreserved. The record establishes that defendant’s counsel declined the court’s offer of further inquiry into the juror’s concerns and consented to her discharge. This was a tactical decision to be made by counsel rather than defendant (see, People v Ferguson, 67 NY2d 383, 390), and the ambiguous expression of dissatisfaction later made by defendant himself did not operate as a withdrawal of consent. Accordingly, this issue is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the juror was properly discharged, after sufficient inquiry. The juror’s statements to the court carried the obvious implication that she was in fear of retribution by defendant, whom she believed to be a resident of her neighborhood, which was also the location of the arrest. Therefore, she was grossly unqualified to continue to serve (see, People v Carrasco, 262 AD2d 50, lv denied 93 NY2d 1015).

We perceive no abuse of sentencing discretion. Concur— Nardelli, J. P., Tom, Andrias, Buckley and Friedman, JJ.

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Bluebook (online)

276 A.D.2d 282, 713 N.Y.S.2d 862, 2000 N.Y. App. Div. LEXIS 10056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-baity-nyappdiv-2000.

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