People v. Hastings

192 A.D.2d 476, 596 N.Y.S.2d 420, 1993 N.Y. App. Div. LEXIS 4354

Opinion

—Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered June 24, 1991, convicting defendant, after jury trial, of robbery in the second degree and grand larceny in the fourth degree, and sentencing him, as a predicate violent felony offender, to concurrent terms of 7 to 14 years and 2 to 4 years, respectively, unanimously affirmed.

The court’s inquiry into the circumstances surrounding the juror’s absence warranted the finding that the juror was no longer available for continued service and should be replaced pursuant to CPL 270.35 (see, People v Page, 72 NY2d 69). Although the jury was told to be in court by 9:45 a.m. and to call if they were going to be late, the court, having received no phone call from the juror, waited until 11:30 before acting to replace her, and then only after two phone calls to her home made by court officers were not successful in reaching her. That the absent juror had complained of chest pains during the last court session the previous Friday, at which time the trial could not proceed because defendant, without notice was absent for religious reasons, that there were no proceedings conducted the previous Thursday, that being the court’s conference day, and that the jury had at this point heard only one day of testimony in a trial that was expected to last only two days, provided additional reasons for the court replacing the juror when it did, including its concern for the convenience of the People’s final witness. Concur — Carro, J. P., Wallach, Asch and Rubin, JJ.