PEOPLE v. BLUE

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

The PEOPLE of the State of New York, Respondent, v. Freddie BLUE, Defendant-Appellant.

Decided: June 19, 1997

Before MURPHY, P.J., and WALLACH, RUBIN, TOM and ANDRIAS, JJ. Ilisa T. Fleischer, for respondent. Howard M. Simms, for defendant-appellant.

Judgment, Supreme Court, New York County (Renee White, J.), rendered May 30, 1995, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

 The verdict was not against the weight of the evidence.   Proof that defendant, aided by another actually present, forcibly tore the complainant's pocket out of his pants to reach the complainant's money, as well as defendant's continued use of force to retain the money, overwhelmingly established defendant's guilt of robbery in the second degree (Penal Law § 160.10[1] ).

 The trial court appropriately exercised its discretion in ruling, pursuant to CPL § 270.35, that a sitting juror was unavailable for continued service, based upon the absent juror's telephone notice to the court clerk during a three day weekend recess that he was carrying out his previously announced plan to leave the country, for a 31/212 week period, prior to continuation of the case on the following Monday.   Upon recommencement of the case, the court reasonably relied upon the absent juror's telephone notice to the clerk, and, under the circumstances, properly substituted the first alternate juror for the absent juror without conducting further inquiry (see, People v. Harris, 204 A.D.2d 240, 612 N.Y.S.2d 157, lv denied 84 N.Y.2d 826, 617 N.Y.S.2d 146, 641 N.E.2d 167).

MEMORANDUM DECISION.