People v. Rivera

Appeal by defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered June 23, 1987, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant, in an attempt to kill a man whom he considered to have cheated him in connection with a drug transaction, discharged a shotgun blast which struck and killed an innocent bystander. The evidence of the defendant’s guilt is overwhelming.

Contrary to the defendant’s contention, the trial court did not err in discharging a juror who failed to appear for the *527continuation of trial, and who apparently could not be located without resort to extraordinary measures which would have delayed the trial indefinitely (see, People v Celestin, 150 AD2d 385, 386; cf., People v Polhill, 140 AD2d 462).

The defendant’s argument concerning the trial court’s "no inference” charge has not been preserved for appellate review (see, People v Fehr, 75 NY2d 836).

The defendant’s remaining contentions, including those raised by his supplemental pro se brief, have been examined and, to the extent that they are preserved for appellate review, considered. None of them warrant reversal or modification of the judgment. Any exercise of our discretionary interest of justice jurisdiction is clearly unwarranted. Thompson, J. P., Bracken, Harwood and Balletta, JJ., concur.