Opinion
No. KA 05-02293.
October 2, 2009.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered September 28, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree (two counts).
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Fahey, Peradotto, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of robbery in the second degree (Penal Law § 160.10, [2] [a]). We conclude that County Court "was within its discretion" at trial in discharging a sworn juror based on a medical emergency involving the juror's spouse ( People v Tisdale, 270 AD2d 917, lv denied 95 NY2d 839; see People v Aponte, 28 AD3d 672, lv denied 7 NY3d 785; People v McCullin, 248 AD2d 277, lv denied 92 NY2d 928). The court made the requisite "reasonably thorough inquiry" in determining that the juror was unavailable for continued service (CPL 270.35 [a]), and properly placed on the record its reasons for discharging the juror after permitting the prosecutor and defense counsel to be heard on the matter ( see CPL 270.35 [b]).