PEOPLE v. SUERO

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

The PEOPLE of the State of New York, Respondent, v. Jose SUERO, Defendant-Appellant.

Decided: January 28, 1997

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and TOM, JJ. Maura E. Daly, for respondent. Rosemary Herbert, for defendant-appellant.

Judgment, Supreme Court, New York County (Jeffrey Atlas, J., at Singer hearing;  Edward McLaughlin, J., at jury trial and sentence), rendered April 21, 1994, convicting defendant of murder in the second degree, and sentencing him to a term of 20 years to life, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Defendant's intent to kill, as inferred from his conduct and all surrounding circumstances (People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094), including defendant's infliction of a stab wound in the vicinity of vital organs (People v. Jamison, 173 A.D.2d 341, 569 N.Y.S.2d 709, lv denied 78 N.Y.2d 955, 573 N.Y.S.2d 651, 578 N.E.2d 449), was established by overwhelming evidence.

 The challenged portions of the court's charge do not warrant reversal.   As to each of the subject matters in question, the charge, viewed as a whole, conveyed the appropriate standards (see, People v. Evans, 192 A.D.2d 337, 596 N.Y.S.2d 17, lv denied 81 N.Y.2d 1072, 601 N.Y.S.2d 592, 619 N.E.2d 670;  People v. Molina, 171 A.D.2d 578, 567 N.Y.S.2d 660, lv denied 78 N.Y.2d 970, 574 N.Y.S.2d 950, 580 N.E.2d 422).

 The substitution of a sick juror, made after a thorough colloquy between the court and the juror, which the court placed on the record, was a proper exercise of discretion.   The juror was suffering from a severe gastrointestinal ailment, and there was no reason to anticipate the juror's prompt recovery (see, People v. Robustelli, 189 A.D.2d 668, 592 N.Y.S.2d 704, lv denied 81 N.Y.2d 975, 598 N.Y.S.2d 777, 615 N.E.2d 234).

 Defendant's motion to dismiss on the ground of prearrest or preindictment delay was properly denied (People v. Singer, 44 N.Y.2d 241, 252-255, 405 N.Y.S.2d 17, 376 N.E.2d 179;  People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303;  People v. Brown, 209 A.D.2d 233, 618 N.Y.S.2d 297, lv denied 85 N.Y.2d 860, 624 N.Y.S.2d 379, 648 N.E.2d 799).  Although there was a six-year delay, this was a brutal murder, and there is no indication of bad faith by law enforcement or specific prejudice to defendant.   The record establishes that defendant fled to Florida, and that defendant's flight was the principal cause of the delay.   The search for defendant was reasonably diligent (see, People v. Cox, 188 A.D.2d 316, 591 N.Y.S.2d 155, lv denied 81 N.Y.2d 969, 598 N.Y.S.2d 770, 615 N.E.2d 227) under all the circumstances.

Defendant's remaining contentions are without merit.

MEMORANDUM DECISION.