PEOPLE v. HENDERSON (1997)

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered July 23, 1992, convicting defendant, after a jury trial, of robbery in the first and second degrees and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 121/212 to 25 years, 71/212 to 15 years and 71/212 to 15 years, respectively, unanimously affirmed.

The court properly exercised its discretion in replacing a sworn juror who called in sick on the Friday before a three day weekend.   The record made by the court established that the complainant, who was in poor health and lived in Pennsylvania, had made a difficult journey to New York to testify on the Friday in question, and would have been required to make another such journey to testify on the following Tuesday, even if the sick juror had returned by that day.   Thus, the court properly considered the complainant's availability (People v. Page, 72 N.Y.2d 69, 73, 531 N.Y.S.2d 83, 526 N.E.2d 783;  People v. Williams, 222 A.D.2d 1122, 636 N.Y.S.2d 253, lv denied 87 N.Y.2d 1027, 644 N.Y.S.2d 160, 666 N.E.2d 1074), as distinguished from his mere convenience (see, People v. Brown, 175 A.D.2d 708, 573 N.Y.S.2d 278, lv denied 78 N.Y.2d 1074, 577 N.Y.S.2d 237, 583 N.E.2d 949).

MEMORANDUM DECISION.