PEOPLE v. RAMIREZ (2019)

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered November 21, 2013, convicting defendant, after a jury trial, of attempted assault in the first and second degrees and assault in the second degree, and sentencing him to an aggregate term of six years, unanimously affirmed.

After a sufficient inquiry, the court providently exercised its discretion in discharging a juror based on unavailability (see CPL 270.35[1],[2][a] ).  The juror explained that he had an appointment for a physical examination the next morning.  It was clear that the examination would require him to be absent from court for more than two hours, given the length and location of the examination.  The juror also explained that he could not reschedule the appointment because the examination was a requirement of a program he was about to enter.  “The Court of Appeals has held that the ‘two-hour rule’ gives the court broad discretion to discharge any juror whom it determines is not likely to appear within two hours” (People v. Kimes, 37 A.D.3d 1, 19, 831 N.Y.S.2d 1 [1st Dept. 2006], lv denied 8 N.Y.3d 881, 832 N.Y.S.2d 494, 864 N.E.2d 624 [2007], citing People v. Jeanty, 94 N.Y.2d 507, 516–17, 706 N.Y.S.2d 683, 727 N.E.2d 1237 [2000] ).  Accordingly, the court providently chose not to delay the trial any further (see e. g. People v. Lopez, 18 A.D.3d 233, 234, 795 N.Y.S.2d 6 [1st Dept. 2005], lv denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159 [2005] ).

Contrary to defendant's argument, the court was not required to ascertain whether the juror could reach an impartial verdict.  A juror's state of mind is a separate consideration from unavailability.