Opinion
May 7, 1996
Appeal from the Supreme Court, New York County (Edward Sheridan, J.).
The discharge of a sworn juror over defendant's objection prior to deliberations was a proper exercise of the court's discretion, where a personal interview of the juror revealed that he had been suffering from gastrointestinal flu-like symptoms for two days ( see, People v. Ortiz, 194 A.D.2d 313, lv denied 82 N.Y.2d 708; People v. Allen, 163 A.D.2d 396, lv denied 77 N.Y.2d 957), which the juror admitted might have affected his ability to concentrate and deliberate. Moreover, the court's determination that the juror's illness rendered him unavailable for continued service ( see, CPL 270.35) was made only after a reasonably thorough inquiry and recitation on the record of the reasons for such discharge ( see, People v. Page, 72 N.Y.2d 69). The alternative of granting a one day adjournment to monitor the juror's condition was never raised by defendant in the trial court.
Contrary to defendant's assertion, the prosecutor did not violate the court's in limine ruling prohibiting the police officers from testifying that defendant acted as a "look out" in the building where he was arrested on prior occasions, but permitting the officers to testify that they had spoken to defendant on prior occasions, and knew that he did not live in that building. These facts were admissible to explain the actions of the police leading to defendant's arrest ( People v. Enoch, 221 A.D.2d 253), and were relevant to the issue of identity ( People v. Rivera, 186 A.D.2d 504). In any event, any prejudice was dispelled by the court's striking the most suggestive portions of the testimony, and its strong limiting instructions that such facts were not to be considered in determining whether defendant committed the charged crimes ( People v. Bernard, 224 A.D.2d 192). Similarly, the prosecutor's summation comments regarding the officers' prior familiarity with the defendant, and defendant's familiarity with the building where the arrest occurred, were fair comment on the evidence admitted at trial, and did not specifically implicate defendant in any uncharged crimes.
The court's preclusion of the two out of four photographs offered by defendant, while simultaneously admitting the prosecutor's photographs depicting the same scene, was within its discretion as the colloquy revealed that two of the defense exhibits were so dark and unclear that they were virtually "useless" and a "graphic distortion" of the building lobby ( see, People v. Davis, 43 N.Y.2d 17, cert denied 435 U.S. 998).
Concur — Milonas, J.P., Ellerin, Wallach, Rubin and Mazzarelli, JJ.