People v. Serrano

269 A.D.2d 219, 703 N.Y.S.2d 450, 2000 N.Y. App. Div. LEXIS 1517

Opinion

—Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered May 14, 1997, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 13 years, unanimously affirmed.

After a thorough telephone conversation between the court and a sworn juror who was absent due to illness, the court weighed the relevant factors, including the length and stage of the trial and the status of witnesses, and properly exercised its discretion in discharging the juror over defendant’s objection (see, People v Page, 72 NY2d 69). Defendant’s various arguments concerning the applicability, interpretation and constitutionality of the recently enacted “two-hour rule” regarding substitution of jurors (CPL 270.35 [2] [a]) are unpreserved and we decline to review them in the interest of justice. In any event, as in People v Artis (262 AD2d 215, lv granted 94 NY2d 819, affd 94 NY2d 507), we need not decide any of these issues because the court’s action was appropriate under the standards existing prior to the amendment (see, People v Page, supra; People v Matthew, 228 AD2d 260; People v Robustelli, 189 AD2d 668, lv denied 81 NY2d 975). Concur — Nardelli, J. P., Tom, Wallach, Rubin and Andrias, JJ.