People v. Cook

176 A.D.2d 209, 574 N.Y.S.2d 330, 1991 N.Y. App. Div. LEXIS 12087

Opinion

— Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered February 15, 1990, convicting defendant, after a jury trial, of assault in the second degree, burglary in the third degree, and criminal possession of a weapon in the third degree, and sentencing him to consecutive indeterminate terms of from 3 Vi to 7 years’ imprisonment, unanimously affirmed.

Upon examination of the record, we find that the trial court did not improperly exercise its authority when on the second day of trial it discharged a sworn juror who was unavailable or unable to continue to serve due to illness pursuant to CPL 270.35 (People v Page, 72 NY2d 69). In that regard, the court, after conducting an inquiry as to the juror’s availability, and after making a record of the facts and reasons for invoking the statutory authorization of discharging and replacing a juror based upon continued unavailability, was warranted in discharging her (People v Page, 72 NY2d, supra, at 73; People v Rivera, 157 AD2d 599). The juror could not advise when she would be available. The prosecution expressed doubt as to the future availability of the three civilian witnesses who were in court scheduled to testify that day.

We have considered defendant’s remaining claims and find them to be without merit. Concur — Murphy, P. J., Sullivan, Kassal and Smith, JJ.