PEOPLE v. COOK

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Michael Todd COOK, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HAYES, HURLBUTT and KEHOE, JJ. Kathleen McDonough, New York City, for defendant-appellant. Robert Mastrocola, Rochester, for plaintiff-respondent.

 Defendant appeals from a judgment convicting him after a jury trial of two counts of murder in the second degree (Penal Law § 125.25 [1] ).   Supreme Court did not err in discharging a sworn juror over defendant's objection.   The juror indicated that he did not want to continue serving as a juror for financial reasons.   The court conducted a thorough and searching inquiry regarding whether the juror could nevertheless remain impartial (see, People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901).   The court properly found that the juror was “grossly unqualified” to continue serving as a juror (CPL 270.35[1] ) because the juror stated numerous times that his mind was not on the case because of his financial difficulties, and he candidly admitted that he did not believe it would be fair to defendant if he were to remain as a juror (see, People v. Huntley, 237 A.D.2d 533, 534, 655 N.Y.S.2d 580, lv. denied 90 N.Y.2d 894, 662 N.Y.S.2d 437, 685 N.E.2d 218;   People v. Bolden, 197 A.D.2d 528, 529, 602 N.Y.S.2d 212, lv. denied 82 N.Y.2d 922, 610 N.Y.S.2d 174, 632 N.E.2d 484).   The court also did not err in denying defendant's request to remove another sworn juror who knew the sister of one of the victims.   That juror indicated that he was a mere acquaintance of the woman and could remain impartial (see, People v. Klavoon, 207 A.D.2d 979, 979-980, 617 N.Y.S.2d 252, lv. denied 84 N.Y.2d 908, 621 N.Y.S.2d 525, 645 N.E.2d 1225;  People v. Larrabee, 201 A.D.2d 924, 924-925, 607 N.Y.S.2d 769, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987;  People v. Brantley, 168 A.D.2d 949, 564 N.Y.S.2d 899, lv. denied 77 N.Y.2d 904, 569 N.Y.S.2d 936, 572 N.E.2d 619).

Defendant contends that the court's charge to the jury, which included a hypothetical example involving issues of credibility, was improper because it presented a factual pattern similar to the facts in this case and possibly indicated that the Trial Justice believed that defendant was guilty (see, People v. Williams, 225 A.D.2d 447, 640 N.Y.S.2d 25;  see generally, People v. Hommel, 41 N.Y.2d 427, 429-430, 393 N.Y.S.2d 371, 361 N.E.2d 1020;  People v. Williams, 234 A.D.2d 912, 913, 652 N.Y.S.2d 447, lv. denied 89 N.Y.2d 1042, 659 N.Y.S.2d 873, 681 N.E.2d 1320).   We disagree.   The court's hypothetical example was proper (see, People v. Williams, supra, 234 A.D.2d, at 913, 652 N.Y.S.2d 447).   Finally, in view of the heinous nature of the offense, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: