PEOPLE v. CARMONA (1999)

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered January 30, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 41/212 to 9 years, unanimously affirmed.

The court appropriately exercised its discretion in ruling that a sworn juror was unavailable for continued service (see, CPL 270.35).   The court's determination was made only after a reasonably thorough inquiry, including two telephone conversations between the court and the juror.   The second telephone call was for the purpose of asking questions proposed by counsel.   The court then recited on the record the answers to the questions and the reasons for such discharge (see, People v. Page, 72 N.Y.2d 69, 531 N.Y.S.2d 83, 526 N.E.2d 783).   The record supports the court's determination that the juror's obvious emotional distress so distracted him from his duties that it rendered him grossly disqualified for continued service, particularly in view of his inability to state when he could return (see, People v. Sparrow, 220 A.D.2d 321, 322, 633 N.Y.S.2d 11, lv. denied 87 N.Y.2d 908, 641 N.Y.S.2d 237, 663 N.E.2d 1267).   We have considered and rejected defendant's remaining arguments.

MEMORANDUM DECISION.