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People v. Rivera

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 570 (N.Y. App. Div. 1991)

Opinion

April 1, 1991

Appeal from the Supreme Court, Queens County (Lonschein, J.).


Ordered that the judgment is affirmed.

Contrary to the defendant's contention, the trial court did not improvidently exercise its discretion by discharging a juror who called in sick. The court returned the juror's call, and determined that the juror had been ill with the flu for at least three days, and expected to be ill and unable to serve on the following day. Under these circumstances, it was apparent that the juror would not be readily available to continue with the trial (see, People v. McDonald, 143 A.D.2d 1050). Accordingly, the requirements set forth in People v. Page ( 72 N.Y.2d 69) had been satisfied (see also, People v. Lawrence, 143 A.D.2d 1045).

Further, we find that the defendant was not denied his right of confrontation by the court's refusal to permit him to cross-examine a police detective concerning an alleged agreement whereby the defendant was to serve as a confidential informant. This agreement, which never came to fruition, was not initiated until after the detective had already testified before the Grand Jury, and the defendant had been indicted. The mere existence of such an agreement does not suggest that the detective had any hostile feelings toward the defendant, or provide a motive for the detective to fabricate his testimony. Since the proffered evidence of alleged hostility toward the defendant in this case was too remote and speculative to have warranted admission, the court did not improvidently exercise its broad discretion by limiting the cross-examination (see, People v. Stanard, 42 N.Y.2d 74, cert denied 434 U.S. 986; Schultz v Third Ave. R.R. Co., 89 N.Y. 242, 250).

It was not error for the trial court to adjudicate the defendant a persistent felony offender in view of his prior convictions, which he failed to controvert although afforded ample opportunity to do so (see, People v. Oliver, 96 A.D.2d 1104, affd 63 N.Y.2d 973; People v. Terry, 117 A.D.2d 761). Moreover, the sentence imposed was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80).

We have examined the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Eiber, Balletta and O'Brien, JJ., concur.


Summaries of

People v. Rivera

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 570 (N.Y. App. Div. 1991)
Case details for

People v. Rivera

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLO RIVERA, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 1, 1991

Citations

172 A.D.2d 570 (N.Y. App. Div. 1991)
567 N.Y.S.2d 891

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