People v. Barksdale

Jul 8, 2015
2012-01422
Versions:130 A.D.3d 746
11 N.Y.S.3d 866

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.), rendered December 16, 2011, convicting him of burglary in the first degree, robbery in the first degree, criminal trespass in the second degree, and kidnaping in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court did not improperly discharge a sworn juror and replace him with an alternate. The court conducted a reasonably thorough inquiry into the juror’s unavailability and providently exercised its discretion in replacing the juror after determining that the juror would not appear within the two-hour time period set forth in CPL 270.35 (2) (see People v Jeanty, 94 NY2d 507 [2000]). The defendant’s claim regarding the constitutionality of the discharge of the juror is unpreserved for appellate review (see People v Angelo, 88 NY2d 217, 222 [1996]; People v Gueye, *747 122 AD3d 768, 768 [2014]; People v Ballard, 51 AD3d 1034, 1035-1036 [2008]) and, in any event, without merit (see People v Jeanty, 94 NY2d at 517; People v Ballard, 51 AD3d at 1036). Dillon, J.P., Leventhal, Cohen and Maltese, JJ., concur.