Opinion
February 17, 2000
Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered May 14, 1997, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 13 years, unanimously affirmed.
Heather Kenney, for respondent.
Robert Budner, for defendant-appellant.
NARDELLI, J.P., TOM, WALLACH, RUBIN, ANDRIAS, JJ.
After a thorough telephone conversation between the court and a sworn juror who was absent due to illness, the court weighed the relevant factors, including the length and stage of the trial and the status of witnesses, and properly exercised its discretion in discharging the juror over defendant's objection (see, People v. Page, 72 N.Y.2d 69). Defendant's various arguments concerning the applicability, interpretation and constitutionality of the recently enacted "two-hour rule" regarding substitution of jurors ( CPL 270.35[2][a]) are unpreserved and we decline to review them in the interest of justice. In any event, as in People v. Artis, 262 A.D.2d 215, 694 N.Y.S.2d 5, lv granted 94 N.Y.2d 819 affd 94 N.Y.2d 507), we need not decide any of these issues because the court's action was appropriate under the standards existing prior to the amendment (see, People v. Page, supra;People v. Matthew, 228 A.D.2d 260; People v. Robustelli, 189 A.D.2d 668, lv denied 81 N.Y.2d 975).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.