Opinion
June 13, 1991
Appeal from the Supreme Court, New York County (Richard Andrias, J.).
Defendant was discovered in a hospital patient's room, looking through a closet. After a struggle with the patient, defendant was chased around the hospital and ultimately captured. After receiving the Miranda warnings, defendant admitted taking a pair of pants, but denied that a struggle had occurred. Defendant testified that when he had lost his way while looking for the psychiatric ward, had decided to sit in a chair, and as he moved the pants that were lying across the chair, a woman started screaming. Defendant said he fled in panic.
The trial court conducted a proper investigation before discharging a juror, whose worsening cold symptoms prompted her to go home during the Friday luncheon recess. (CPL 270.35; People v Page, 72 N.Y.2d 69.) The court's personal observations established that the juror was quite ill, and inquiry by the court and defendant's attorney established that it could not be ascertained when she expected to be fit for duty. (Compare, People v Watkins, 157 A.D.2d 301.)
The showup identification of defendant by a member of the hospital staff was properly admitted into evidence. (People v Duuvon, 160 A.D.2d 653, affd 77 N.Y.2d 541.) The showup was conducted within a short time of the incident when the witness's recollection was fresh.
There is no basis to find that the trial court's warning to the jury to avoid reports concerning a sensational criminal case, which involved the murder of a doctor at a different hospital, was inimical to defendant's rights. Defendant's counsel in fact requested the court to issue such an instruction, and he did not later voice any objection to what the court said to the jury.
The testimony as to out-of-court declarations by others showing why various witnesses joined the search and pursuit of defendant did not prejudice defendant's right to a fair trial. (People v Casanova, 160 A.D.2d 394, lv denied 76 N.Y.2d 786.) Defendant's claim that he was denied his right to testify before the grand jury is unpreserved (CPL 190.50 [a]), and there is no basis to disturb the trial court's dismissal of defendant's attack on the effectiveness of trial counsel. Defendant's sentence is neither unduly harsh nor based on unproven charges. (CPL 390.30; 400.10 [2]; Williams v New York, 337 U.S. 241, reh denied 338 U.S. 841.)
Concur — Sullivan, J.P., Carro, Rosenberger, Asch and Kassal, JJ.