Opinion
May 31, 1994
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
The court's discharge of two jurors pursuant to CPL 270.35 on the ground that they were unavailable was not an abuse of discretion (see generally, People v. Page, 72 N.Y.2d 69). The first juror discharged had informed a court officer that she was sick with the flu and that she would not be available for more than a couple of days. Despite defendant's claims to the contrary, there was no reason for the court to personally speak to the juror to determine whether she desired to continue serving. The second juror discharged had indicated that her son was home sick with a fever and that she would not be available until after the illness was over since she had no one to look after him. In addition, the court had no means of contacting the juror since she had taken her son to the doctor. Under these circumstances, the court properly dismissed the absent juror without further inquiry.
Defendant's claims of prosecutorial misconduct in summation are for the most part unpreserved for appellate review as a matter of law (CPL 470.05). In any event, the remarks of which defendant now complains were directly responsive to the defense summation which went to great lengths to attack the character and credibility of the People's witnesses (People v Wright, 172 A.D.2d 293, lv denied 77 N.Y.2d 1003).
Contrary to defendant's pro se argument, he was properly sentenced as a second violent felony offender based upon his Virginia conviction for robbery (Penal Law § 70.04 [b] [i]). In addition, defendant's sentence was not excessive.
We have considered defendant's remaining claims including those raised in the pro se supplemental brief and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Carro, Wallach and Asch, JJ.