People v. Woods

275 A.D.2d 332, 712 N.Y.S.2d 407, 2000 N.Y. App. Div. LEXIS 8554

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jones, J.), rendered April 17, 1997, convicting him of attempted murder in the second degree, assault in the first degree, assault in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of assault in the second degree as to the victim Ethel W., vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant’ conviction of assault in the second degree with respect to Ethel W. is dismissed as a lesser-included offense of his conviction of assault in the first degree (see, Penal Law § 120.05 [1]; § 120.10 [1]; CPL 300.30; People v Cantarero, 248 AD2d 481).

It was not error for the court to replace a sworn juror just prior to the onset of deliberations, after determining that her upcoming travel plans would interfere with her ability to concentrate and deliberate in a way that was fair to both sides (see, People v Page, 72 NY2d 69; People v Bowers, 210 AD2d 795, 797).

The defendant’s request for a missing witness charge, made after the People rested, was untimely (see, People v Flores, 255 AD2d 394).

The defendant’s remaining contentions are without merit. Krausman, J. P., Goldstein, Feuerstein and Smith, JJ., concur.