Opinion
2015-07-08
The PEOPLE, etc., respondent, v. Stephen BARKSDALE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Benjamin D. White of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Benjamin D. White of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.), rendered December 16, 2011, convicting him of burglary in the first degree, robbery in the first degree, criminal trespass in the second degree, and kidnaping in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not improperly discharge a sworn juror and replace him with an alternate. The court conducted a reasonably thorough inquiry into the juror's unavailability and providently exercised its discretion in replacing the juror after determining that the juror would not appear within the two-hour time period set forth in CPL 270.35(2) ( see People v. Jeanty, 94 N.Y.2d 507, 706 N.Y.S.2d 683, 727 N.E.2d 1237). The defendant's claim regarding the constitutionality of the discharge of the juror is unpreserved for appellate review ( see People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333; People v. Gueye, 122 A.D.3d 768, 768, 994 N.Y.S.2d 683; People v. Ballard, 51 A.D.3d 1034, 1035–1036, 858 N.Y.S.2d 769) and, in any event, without merit ( see People v. Jeanty, 94 N.Y.2d at 517, 706 N.Y.S.2d 683, 727 N.E.2d 1237; People v. Ballard, 51 A.D.3d at 1036, 858 N.Y.S.2d 769).