People v. Hill

Apr 6, 1992
Versions:182 A.D.2d 640
582 N.Y.S.2d 246
1992 N.Y. App. Div. LEXIS 5621

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered December 12, 1988, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly exercised its discretion in discharging, prior to the commencement of trial, a sworn juror who had asked to be excused because his father, who was in the hospital and had just been diagnosed as having cancer and a broken hip, was to undergo surgery the following day and there was uncertainty as to whether he would survive the surgery. Although it would have been preferable for the trial *641court to have conducted a more detailed inquiry of the juror’s inability to serve (see, People v Page, 72 NY2d 69; People v Garry, 176 AD2d 145; People v Allen, 163 AD2d 396), we conclude that the court was warranted in determining that the juror was "unavailable for continued service” within the meaning of the statute (CPL 270.35; see, People v Moore, 177 AD2d 653; People v Velasquez, 171 AD2d 825; People v McDonald, 143 AD2d 1050).

The defendant’s Batson claim (see, Batson v Kentucky, 476 US 79) is unpreserved for appellate review inasmuch as defense counsel did not make a formal Batson objection, but only requested that "the record * * * reflect [that the prospective juror] is a black woman” and did not move for a hearing, a ruling, an explanation, or a mistrial (see, People v Campanella, 176 AD2d 813; People v Steans, 174 AD2d 582; People v Rosado, 166 AD2d 544).

The defendant’s remaining claims are either unpreserved for appellate review or without merit. Sullivan, J. P., Balletta, Lawrence and Santucci, JJ., concur.