Summary
In People v. Burns (118 A.D.2d 864), the trial court replaced a juror with an alternate so that the juror could go on vacation.
Summary of this case from People v. JohnOpinion
March 31, 1986
Appeal from the Supreme Court, Queens County (O'Brien, J.).
Judgment affirmed.
The defendant contends that his right to a jury trial was violated when the trial court replaced a juror with an alternate so that the juror could go on vacation. The alleged error has not been preserved for review because the defendant did not object to the substitution (CPL 470.05), but, rather, stated "it is up to the discretion of the judge". Such a decision was within the Trial Judge's broad discretion, under CPL 270.35, to discharge a juror if he was "unable to continue serving by reason of illness or other incapacity, or for any other reason [was] unavailable for continued service" (see, People v. Pierce, 97 A.D.2d 904, 905). We further note that there is no indication that the defendant was denied a fair trial as a result of the substitution.
Nor did the prosecutor's remarks, albeit unprofessional and unwarranted, amount to reversible error in light of the overwhelming evidence of the defendant's guilt (see, People v Schramm, 92 A.D.2d 905). However, this court views unfavorably the prosecutor's riding roughshod over the court's rulings and admonitions and showing complete disrespect for the court.
Finally, we do not find the sentence excessive in light of the defendant's numerous prior arrests and convictions and the indications that he "specialized" in armed robbery. Mangano, J.P., Gibbons, Niehoff and Kunzeman, JJ., concur.