Memminger v. Nelson Gardens, Inc.

Jan 25, 2005
Versions:14 A.D.3d 442
787 N.Y.S.2d 870
2005 N.Y. App. Div. LEXIS 505

Judgment, Supreme Court, New York County (James A. Yates, J.), entered November 6, 2002, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/2 to 7 years, unanimously affirmed.

During jury selection, after conducting a suitable inquiry into a sworn juror‘s availability, the court properly exercised its discretion in discharging the juror on the ground that he was unavailable or unable to continue to serve due to illness (see CPL 270.15 [3]; People v Page, 72 NY2d 69 [1988]). The duration of the juror‘s expected absence was uncertain (see People v Graves, 243 AD2d 275 [1997], lv denied 91 NY2d 834 [1997]) and the court properly took into account the inconvenience that an indefinite delay would cause to jurors and witnesses (see People v Robustelli, 189 AD2d 668 [1993], lv denied 81 NY2d 975 [1993]). We also note that the court granted defendant an additional peremptory challenge.

We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Marlow, Nardelli, Sweeny and Catterson, JJ.