People v. Johnson

205 A.D.2d 375, 613 N.Y.S.2d 381, 1994 N.Y. App. Div. LEXIS 6317

Opinion

Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered March 28, 1991, convicting defendant, after jury trial, of robbery in the second degree and criminal possession of stolen property in the fifth degree and sentencing him, as a second felony offender, to concurrent terms of 15 years to life and 1 year, respectively, unanimously affirmed.

Defendant’s contention that he was denied his right to be present during a material stage of the proceedings when the court conducted an in camera interview of a deliberating juror who sought to be excused due to illness, and dismissed the juror, is without merit. Following the court’s questioning of the juror, at which defense counsel was present, the court dismissed the juror and substituted an alternate with defendant’s written consent, delivered in open court. Defense counsel’s presence assured defendant of a fair and just hearing (see, People v Hayes, 191 AD2d 368, 370, lv denied 82 NY2d 719), and no prejudice can be discerned from the manner in which the proceeding was conducted (see, People v Mosely, 200 AD2d 430, 431). Concur—Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Tom, JJ.