People v. Crumes

Apr 28, 1998
Versions:249 A.D.2d 211
671 N.Y.S.2d 263
1998 N.Y. App. Div. LEXIS 4677

—Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered January 18, 1995, convicting defendant, after a jury trial, of fraudulent accosting, and sentencing him to a prison term of 4 months, unanimously affirmed. The matter is remanded to Supreme Court, New York County for further proceedings pursuant to CPL 460.50 (5).

Since defendant did not object to the departure of sworn jurors during further jury selection, his claim that the court violated CPL 270.15 (3) by failing to obtain his consent is unpreserved for appellate review and we decline to review it in the interest of justice (People v Love, 204 AD2d 97, 99, affd 84 NY2d 917). Since defendant was clearly aware in advance that the sworn jurors were to be excused, normal preservation rules apply (cf., People v Damiano, 87 NY2d 477). Were we to review this claim, we would find that defendant has not demonstrated any prejudice warranting reversal (People v Cassado, 156 AD2d 183, lv denied 75 NY2d 917; see also, CPL 470.05 [1]).

We perceive no abuse of sentencing discretion. Concur — Sullivan, J. P., Rosenberger, Nardelli, Rubin and Andrias, JJ.