PEOPLE v. MILLER (1998)

Judgment, Supreme Court, New York County (William Wetzel, J.), rendered September 11, 1995, convicting defendant, after a jury trial, of attempted assault in the first degree (2 counts) and reckless endangerment in the first degree, and, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to four concurrent terms of 3 to 6 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence that defendant fired a loaded pistol at the victims.   The court properly discharged a sworn juror, over defense objection, where the juror had concealed the fact that he was required to appear in Criminal Court during the instant trial to answer a pending misdemeanor charge being prosecuted by the same District Attorney's Office, which charge he was angry about and intended to contest.   After a thorough inquiry, the court reasonably concluded that this juror possessed a state of mind that would have influenced his deliberations and prevented him from rendering an impartial verdict (People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901).

 The prosecutor's improper comment in violation of defendant's right to remain silent did not deprive defendant of a fair trial, in view of the court's curative instructions and the overwhelming evidence of guilt (People v. Crociata, 123 A.D.2d 781, 507 N.Y.S.2d 255;  People v. Moore, 82 A.D.2d 972, 440 N.Y.S.2d 418).

MEMORANDUM DECISION.