People v. Wallace

220 A.D.2d 470, 632 N.Y.S.2d 26

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered April 7, 1994, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, he was not denied his constitutional and statutory right to a trial by a jury in whose selection he had participated when the trial court discharged a sworn juror. The inquiry conducted by the court revealed that the juror had disregarded instructions. Such conduct justified her discharge (see, CPL 270.35; People v Clarke, 168 AD2d 686).

The defendant has not preserved for appellate review his contention that error took place due to certain comments made by the prosecutor during her summation. Defense counsel did not object to the court’s curative instructions following the comments and did not move for a mistrial. Accordingly, the instructions must be deemed to have corrected any error to the defendant’s satisfaction (see, People v Heide, 84 NY2d 943). In any event, upon reviewing the court’s instructions, we find that they were sufficient to dissipate any potential prejudice (see, People v Stith, 215 AD2d 789). Miller, J. P., Altman, Gold-stein and Florio, JJ., concur.