PEOPLE v. TISDALE (2000)

 Supreme Court properly replaced two sworn jurors with alternate jurors (see, CPL 270.35[1] ).   During the middle of the trial, one of the jurors at issue sent a message that she had to stay home with her ill seven-month-old infant and did not know whether she would be able to return to court the next day.   Under those circumstances, the court was within its discretion in concluding that the juror was unavailable for continued service (see, CPL 270.35[1];  People v. Sheldon, 262 A.D.2d 1060, 692 N.Y.S.2d 878, lv. denied 93 N.Y.2d 1045, 697 N.Y.S.2d 878, 720 N.E.2d 98;  People v. McDonald, 143 A.D.2d 1050, 1051, 533 N.Y.S.2d 894, lv. denied 73 N.Y.2d 857, 537 N.Y.S.2d 504, 534 N.E.2d 342).   The other juror approached the court and indicated that she knew an observer in the courtroom and was uncomfortable continuing to serve as a juror in the case.   After a “probing and tactful inquiry” (People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901), the court determined that the juror was grossly unqualified to continue serving in the case (see, CPL 270.35[1] ).   Based on the responses of the juror to questions from the court and counsel, and according great weight to the court's ability to observe her demeanor, we conclude that the court properly dismissed her (see, People v. Ocasio, 258 A.D.2d 303, 685 N.Y.S.2d 184, lv. denied 93 N.Y.2d 975, 695 N.Y.S.2d 61, 716 N.E.2d 1106;  People v. Galvin, 112 A.D.2d 1090, 1090-1091, 492 N.Y.S.2d 836, lv. denied 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779).

 Defendant contends that the court erred in allowing an officer to testify as an expert in the identification of drugs.   The qualification of an expert is within the discretion of the court, and we conclude that the court did not abuse its discretion here (see, People v. Page, 225 A.D.2d 831, 833-834, 638 N.Y.S.2d 985, lv. denied 88 N.Y.2d 883, 645 N.Y.S.2d 457, 668 N.E.2d 428;  see also, People v. Diaz, 51 N.Y.2d 841, 842, 433 N.Y.S.2d 751, 413 N.E.2d 1166).   We have considered the remaining contentions of defendant raised in his pro se supplemental brief and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: