People v. DiBlasio

150 A.D.2d 792, 542 N.Y.S.2d 37, 1989 N.Y. App. Div. LEXIS 7212

Opinion

Appeal by the defendants from two judgments (one as to each of them) of the Supreme Court, Kings County (Owens, J.), both rendered January 14, 1988, convicting them of insurance fraud in the first degree (three counts), insurance fraud in the second degree (five counts) and criminal mischief in the fourth degree (six counts), upon jury verdicts, and imposing sentences.

Ordered that the judgments are reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.

We agree with the defendants that the Trial Judge did not satisfy the requirements of People v Page (72 NY2d 69) when he replaced a tardy juror with the first alternate without first conducting an inquiry (see, CPL 270.35). Under the circumstances of this case, defense counsel’s objection was adequate to communicate their protest to the procedure followed by the court.

We have examined the defendants’ remaining contentions, including their claim that their actions did not constitute fraudulent insurance acts within the meaning of Penal Law § 176.05, and find them to be lacking in merit. Bracken, J. P., Sullivan, Balletta and Rosenblatt, JJ., concur.