PEOPLE v. PAYTON (2001)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Calvin PAYTON, Appellant.

Decided: January 08, 2001

DAVID S. RITTER, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN and NANCY E. SMITH, JJ.

M. Sue Wycoff, New York, N.Y. (Mitchell J. Briskey of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered June 17, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contentions, the trial court properly determined that a sworn juror was grossly unqualified to serve. The record reveals that the juror withheld information regarding his prior conviction for possession of marihuana and that his brother-in-law had been convicted of a crime until after being sworn. Under these circumstances, the trial court properly discharged that juror pursuant to CPL 270.35 (see, People v. Richards, 267 A.D.2d 18, 698 N.Y.S.2d 490; People v. Tamayo, 256 A.D.2d 98, 682 N.Y.S.2d 37; Matter of Mikel v. Mark, 249 A.D.2d 993, 672 N.Y.S.2d 161).

MEMORANDUM BY THE COURT.

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