People v. Bunch

278 A.D.2d 501, 717 N.Y.S.2d 385, 2000 N.Y. App. Div. LEXIS 13889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 2000
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered July 10, 1998, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court did not err in refusing to discharge two sworn jurors. On the first day of jury deliberations, Juror No. 10 informed the Supreme Court that she thought she recognized one of the defendant’s accomplices as “one of the persons who tried to rob her home.” Since Juror No. 10 was not certain that she recognized the accomplice and since she assured the Supreme Court that she could remain fair and impartial, we all, including our dissenting colleagues, agree that the Supreme Court properly concluded that she was not “grossly unqualified” to serve on the jury (see, CPL 270.35; People v Buford, 69 NY2d 290; People v Johnson, 220 AD2d 270; People v Attanasio, 191 AD2d 447). Moreover, contrary to the contention of the dissent, any claim that the Supreme Court should have also conducted an inquiry to determine whether any of the other jurors were “grossly unqualified” is unpreserved for appellate review (see, People v Jackson, 209 AD2d 247).

Although not raised by the dissent, we note that the Supreme Court properly denied Juror No. 8’s request to be excused. On the second day of jury deliberations, Juror No. 8 informed the court that she felt pressure to return to her ailing computer business. After a thorough inquiry, the Supreme Court determined that Juror No. 8 was not “unavailable to continue service” (see, CPL 270.35). As a general rule, financial hardship, standing alone, is not sufficient to warrant a discharge from jury service, especially when the trial is near completion (see, People v Hines, 191 AD2d 274; People v Nocedo, 161 AD2d 297; People v Molette, 129 AD2d 651). Moreover, the determination of the Trial Justice, who is in the best position to assess partiality, is entitled to great deference on appeal (see, People v Michael, 48 NY2d 1, 10; People v Rodriguez, 71 NY2d 214, 219). Accordingly, the defendant is not entitled to a new trial. Santucci, J. P., Sullivan and Altman, JJ., concur.