People v. Green

293 A.D.2d 382, 740 N.Y.S.2d 612, 2002 N.Y. App. Div. LEXIS 4007

Opinion

—Judgment, Supreme Court, Bronx County (Alexander Hunter, J.), rendered January 10, 2000, convicting defendant, after a jury trial, of murder in the second degree, and sentencing her to a term of 25 years to life, unanimously affirmed.

Since defendant’s mistrial motion was made on different grounds from those advanced on appeal, her present claim that the court should have discharged a deliberating juror on the ground of misconduct is unpreserved (see, People v Tutt, 38 NY2d 1011), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court properly exercised its discretion in declining to discharge the juror, a remedy that would have necessitated a mistrial under the circumstances. The court properly found, after a “probing and tactful inquiry” (see, People v Buford, 69 NY2d 290, 299), that jury deliberations would not be affected by an unauthorized communication made by an alternate juror to the juror in question. The court’s curative actions were sufficient to prevent any prejudice to defendant (see, People v Sher, 24 NY2d 454, 457, cert denied 396 US 837; compare, Parker v Gladden, 385 US 363). Concur—Nardelli, J.P., Tom, Buckley, Rosenberger and Ellerin, JJ.