PEOPLE v. LEWIS (1998)

Judgment, Supreme Court, Bronx County (Eugene Oliver, J.), rendered December 19, 1995, 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 trial court properly exercised its discretion in discharging a juror prior to the start of testimony at trial.   The juror, whose physical distress was apparent in the courtroom, reported that she was bleeding heavily internally, was on her way to the hospital for testing, would likely be unavailable for four or five days and might be hospitalized depending on the results of these initial tests (see, People v. Page, 72 N.Y.2d 69, 73, 531 N.Y.S.2d 83, 526 N.E.2d 783;  People v. Matthew, 228 A.D.2d 260, 643 N.Y.S.2d 578;  People v. Martell, 227 A.D.2d 177, 642 N.Y.S.2d 10, lv. denied 88 N.Y.2d 1069, 651 N.Y.S.2d 413, 674 N.E.2d 343).

Although the court's no adverse inference charge “may have been lengthier than it should have been, it was not facially incorrect and did not imply to the jury that defendant should have testified” (People v. Jones, 200 A.D.2d 441, 607 N.Y.S.2d 239, lv. denied 83 N.Y.2d 854, 612 N.Y.S.2d 386, 634 N.E.2d 987).

MEMORANDUM DECISION.