People v. Davis

292 A.D.2d 168, 738 N.Y.S.2d 208, 2002 N.Y. App. Div. LEXIS 2260

Opinion

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered June 19, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 4 to 12 years, unanimously affirmed.

The court properly exercised its discretion in discharging a selected but unsworn juror whose late arrival would have unduly prolonged the trial. Since defendant consented to a delay in swearing the selected jurors, he agreed to create a category of jurors, i.e., selected but unsworn jurors, about which the Criminal Procedure Law is silent as to criteria for discharge (see, People v Velez, 255 AD2d 146, lv denied 93 NY2d 858). Although the delay in the juror’s arrival was expected to be only one hour, the court concluded that this delay would have disrupted the trial schedule to the extent that this short trial would have unnecessarily extended into the following week.

The court’s Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v Walker, 83 NY2d 455, 458-459).

Defendant’s challenges to the court’s charge are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal. Concur — Andrias, J.P., Saxe, Rosenberger, Wallach and Buckley, JJ.