PEOPLE v. ROSARIO (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Wade, J.), rendered February 8, 1996, convicting him of assault in the second degree (two counts), and obstructing governmental administration, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

There is no merit to the defendant's contention that the trial court should have granted a mistrial or discharged a sworn juror who was believed to have commented to another juror about the testimony of a witness while the attorneys were at the bench for a sidebar.   The court questioned the two jurors involved separately, in camera, in the presence of defense counsel and the prosecutor, and stated the reason for its ruling on the record (People v. Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191, 506 N.E.2d 901).   Although the commenting juror's responses to the court's inquiry, that she did not remember what she said, were equivocal, the court's refusal to speculate was proper (People v. Buford, supra).   There was no evidence adduced that this juror was unable to render an impartial verdict so as to render her “grossly unqualified” pursuant to CPL 270.35(1), and therefore, we see no reason to disturb the trial court's ruling (see, People v. Ingram, 213 A.D.2d 723, 724, 624 N.Y.S.2d 457).

The defendant's remaining contention does not require reversal.

MEMORANDUM BY THE COURT.