Opinion
KA 00-01965
May 3, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered May 16, 2000, convicting defendant after a jury trial of, inter alia, course of sexual conduct against a child in the second degree.
GARY MULDOON, ROCHESTER, FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HAYES, BURNS, GORSKI, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of course of sexual conduct against a child in the second degree (Penal Law former § 130.80 [a]) and five counts of endangering the welfare of a child (§ 260.10 [1]). Defendant contends that Supreme Court failed to make a proper inquiry into the physical condition of a sworn juror and erred in discharging that juror based on illness. Those contentions are not preserved for our review ( see People v. Fox, 172 A.D.2d 218, 220, lv denied 78 N.Y.2d 966), and in any event are without merit. The court conducted a "reasonably thorough inquiry" before discharging the juror and replacing him with an alternate juror (CPL 270.35 [a]; see People v. Page, 72 N.Y.2d 69, 73; People v. Whyte, 255 A.D.2d 407, lv denied 92 N.Y.2d 1040; People v. Reed, 236 A.D.2d 866, 866, lv denied 89 N.Y.2d 1099). The juror had a note from his doctor indicating that he had a contagious eye disease, and he was instructed not to return to work for three days. Under those circumstances, which included the possibility that the juror might infect the other jurors, the court did not err in discharging the juror ( see People v. Miranda, 223 A.D.2d 728, 729, lv denied 88 N.Y.2d 882).
Defendant contends that the court improperly restricted his cross-examination of two complainants with respect to statements made by them to the police regarding a neighborhood child who was missing. Contrary to defendant's contention, only one complainant made statements to the police regarding that incident, and defense counsel sought to cross-examine only that complainant. Defendant's contention on appeal with respect to the other complainant is therefore both unpreserved for our review and without merit. With respect to the complainant whom defense counsel sought to cross-examine, we note that "the scope of cross-examination of a witness concerning collateral matters designed to impeach credibility is within the broad discretion of the trial court" ( People v. Pritchett, 248 A.D.2d 967, 968, lv denied 92 N.Y.2d 929; see People v. Rivera, 256 A.D.2d 1098, 1099, lv denied 93 N.Y.2d 977; People v. Delcarpio, 221 A.D.2d 359, 360, lv denied 87 N.Y.2d 920). The court did not improvidently exercise its discretion in this case.