People v. Rivera

157 A.D.2d 599, 550 N.Y.S.2d 348, 1990 N.Y. App. Div. LEXIS 580

Opinion

Judgment of the Supreme Court, Bronx County (Bernard J. Fried, J.), rendered January 7, 1987 convicting defendant-appellant, following a jury trial, of attempted criminal possession of stolen property in the first degree and sentencing him as a second felony offender to an indeterminate term of 2 to 4 years in prison, is unanimously affirmed.

The evidence, viewed most favorably to the People, was sufficient to support the conviction (People v Bleakley, 69 NY2d 490). There is no basis upon which to disturb the jury’s acceptance of the testimony by prosecution witnesses that the defendant entered the automobile in question without any authority and attempted to drive it away.

Moreover, the court did not improperly exercise its authority when it discharged two jurors who were unavailable or unable to continue to serve due to illness or other incapacity pursuant to CPL 270.35 (see, People v Page, 72 NY2d 69, 73). In that regard, the court, after conducting an inquiry of each juror, was warranted in finding that the juror’s return and the length of the absence was not determinable. Thus, the court properly discharged one juror on the ground of illness and the other because of a personal tragedy. Concur—Sullivan, J. P., Ross, Milonas, Smith and Rubin, JJ.