PEOPLE v. GORDON (2004)

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 7, 2002, as amended August 27, 2002, convicting defendant, after a jury trial, of attempted assault in the first degree, assault in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 10 years, unanimously affirmed.

After a proper inquiry, the court properly exercised its discretion in denying defendant's request to replace a sworn juror who, according to another juror, had “joked” immediately after jury selection that the jury could reach a guilty verdict without hearing any evidence.   The court properly determined that the juror, who gave unequivocal assurances of his impartiality, was fit to continue serving and to render a fair verdict (see CPL 270.35[1];  People v. Buford, 69 N.Y.2d 290, 298-299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ).   Moreover, even if the juror who allegedly made the remark “was less than completely forthright, there was no misconduct that affected a substantial right of defendant [citation omitted]” (People v. Cabrera, 305 A.D.2d 263, 761 N.Y.S.2d 21 [2003], lv. denied 100 N.Y.2d 560, 763 N.Y.S.2d 817, 795 N.E.2d 43 [2003] ).