PEOPLE v. VARGAS (1999)

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered September 13, 1996, 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 two concurrent terms of 6 to 12 years, unanimously affirmed.

 The court properly exercised its discretion in substituting a sworn juror, over defendant's objection, after making an appropriate inquiry (see, People v. Page, 72 N.Y.2d 69, 73, 531 N.Y.S.2d 83, 526 N.E.2d 783).   The juror was rendered unavailable by the fact that continued service would have caused him serious and unavoidable hardship rather than mere inconvenience, and the substitution was further justified as it occurred at a relatively early stage of the trial (see, People v. DeMatteis, 186 A.D.2d 460, 461, 589 N.Y.S.2d 153, lv. denied 81 N.Y.2d 969, 598 N.Y.S.2d 770, 615 N.E.2d 227).

 The court's submission to the jury, over objection, of a verdict sheet on which the counts were numbered beginning with four (reflecting the fact that the first three counts were dismissed prior to trial and unbeknownst to the jury) did not violate CPL 310.20(2), since the sheet was still simply a list of the offenses submitted.   Moreover, the court's instructions were sufficient to prevent any jury speculation as to missing counts.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.