PEOPLE v. APONTE (2006)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.), rendered January 20, 2004, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in discharging a sworn juror before the commencement of deliberations.   The “reasonably thorough inquiry” (CPL 270.35[2][a] ) conducted by the court supported its conclusion that the juror would be unavailable for continued service due to a family member's medical emergency (see People v. Page, 72 N.Y.2d 69, 73, 531 N.Y.S.2d 83, 526 N.E.2d 783;  People v. Davis, 1 A.D.3d 607, 767 N.Y.S.2d 638;  People v. Tisdale, 270 A.D.2d 917, 705 N.Y.S.2d 158;  People v. Riccardi, 199 A.D.2d 432, 605 N.Y.S.2d 112;  People v. Hill, 182 A.D.2d 640, 582 N.Y.S.2d 246).

 The defendant's claim that the prosecutor engaged in misconduct during cross examination and on summation is unpreserved for appellate review since the defendant made only general objections and did not request curative instructions when objections were sustained (see People v. Haripersaud, 24 A.D.3d 468, 806 N.Y.S.2d 221;  People v. Hudgins, 20 A.D.3d 489, 797 N.Y.S.2d 760;  People v. Warren, 12 A.D.3d 708, 785 N.Y.S.2d 498;  People v. White, 5 A.D.3d 511, 772 N.Y.S.2d 601).   In any event, the prosecutor did not commit misconduct during cross examination by using a prior inconsistent statement to impeach the defendant's credibility (see People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262;  People v. Jones, 207 A.D.2d 745, 617 N.Y.S.2d 4;  People v. Pierce, 189 A.D.2d 568, 592 N.Y.S.2d 24).   Furthermore, the challenged summation remarks either constituted fair comment on the evidence, or permissible responses to the defense counsel's summation (see People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Warren, supra;  People v. White, supra;  People v. Adamo, 309 A.D.2d 808, 765 N.Y.S.2d 651).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).