Opinion
July 9, 1990
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of burglary in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
During the course of the trial, two jurors separately communicated to the court that they were ill and unable to continue. These jurors were thereupon discharged and replaced with alternates. On appeal, the defendant urges that this was error. Defendant's contentions notwithstanding, we find that inasmuch as the trial court ascertained that the jurors were in fact ill and under the care of a doctor, the discharge and substitution of the jurors constituted a proper exercise of discretion (see, People v. Page, 72 N.Y.2d 69; People v. Salley, 153 A.D.2d 704; People v. Medina, 152 A.D.2d 602). However, we again take this opportunity to emphasize that it would have been preferable for the trial court to have conducted a more detailed inquiry pursuant to CPL 270.35 of the circumstances of these jurors' inability to serve (see, People v. Page, supra; People v Lawrence, 143 A.D.2d 1045).
We find equally unavailing the defendant's assertion that reversal is warranted due to the trial court's refusal to discharge a juror who requested to be excused. Contrary to defendant's contentions, the record is barren of any indication that this juror possessed a state of mind which would have prevented her from rendering an impartial verdict (see, People v Bailey, 146 A.D.2d 788; see also, People v. Rodriguez, 71 N.Y.2d 214; People v. Buford, 69 N.Y.2d 290).
The defendant claims that the indictment against him should have been dismissed because he did not effectively waive immunity when he testified before the Grand Jury (see, CPL 190.40; 190.45). It must be noted that the defendant never made a motion to dismiss the indictment on this ground, either before or at trial, and accordingly, the issue of law is not preserved for appellate review. In any event, a review of the minutes of the Grand Jury proceeding reveals that the defendant swore that it was his signature which appeared on the written waiver introduced at the proceedings. Thus, statutory requirements were satisfied (see, People v Hodge, 141 A.D.2d 843; see also, People v. Higley, 70 N.Y.2d 624).
We are unpersuaded that the court erred in denying the defendant's motion to produce two identification witnesses at the Wade hearing. As recently noted by the Court of Appeals, a defendant does not have an unqualified right to call a complainant or identifying witness at such a hearing (see, People v. Chipp, 75 N.Y.2d 327). In this regard the inquiry must be focused on whether the hearing evidence raises substantial issues as to the constitutionality of the identification procedure (see, People v. Chipp, supra), whether the People's evidence regarding the identification procedure is "notably incomplete" (see, People v. Sokolyansky, 147 A.D.2d 722), or the defendant otherwise establishes a need for the witness's testimony (see, People v. Ocasio, 134 A.D.2d 293). In light of the fact that the defendant failed to make such a showing, his motion in this regard was properly denied (see, People v. James, 159 A.D.2d 723).
Due to the fact that there was no proof that the defendant entered or remained upon a premises unlawfully, we conclude that the defendant's conviction of burglary in the first degree must be vacated (People v. Bailey, 146 A.D.2d 788, supra).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.