People v. Condes

Nov 10, 2005
Versions:23 A.D.3d 1149
805 N.Y.S.2d 753

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, unlawful imprisonment in the first degree (Penal Law § 135.10) and four counts of rape in the first degree (§ 130.35 [1]). Following opening statements by the People and defense counsel at trial, defendant entered a plea of guilty. He thus forfeited his present challenge to County Court‘s Sandoval ruling (see People v McCorkle, 298 AD2d 848 [2002], lv denied 99 NY2d 561 [2002]; People v Nichols, 277 AD2d 715, 718 [2000]; People v Kilmer, 228 AD2d 808 [1996]).

We reject defendant‘s contention that the court erred in failing to remove a sworn juror, thereby denying defendant his rights to due process and a fair trial. We note that defendant‘s contention is properly before us despite the fact that defendant pleaded guilty after jury selection and opening statements (see generally People v Hansen, 95 NY2d 227, 230-231 [2000]). Pursuant to CPL 270.35 (1), “[i]f at any time after the trial jury has been sworn and before the rendition of its verdict . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . ., the court must discharge such juror.” “In concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of the juror based on [his or] her equivocal responses. Instead, it must be convinced that the juror‘s knowledge will prevent [him or] her from rendering an impartial verdict” (People v Buford, 69 NY2d 290, 299 [1987]). Here, the court questioned the sworn juror in chambers and, upon ascertaining that the juror‘s casual acquaintance with a witness years earlier would not affect the juror‘s ability to be fair and impartial, the court properly determined that the juror was not “grossly unqualified” to continue serving (CPL 270.35 [1]; see People v Booker, 282 AD2d 201 [2001], lv denied 96 NY2d 916 [2001]; People v Davis, 248 AD2d 632 [1998], lv denied 92 NY2d 850 [1998]). Finally, the sentence, which was less than the maximum allowable, is not unduly harsh or serve. Present—-Pigott, Jr., P.J, Scudder, Kehoe, Smith and Pine, JJ.