People v. Martell

Judgment, Supreme Court, New York County (Harold Rothwax, J., at suppression hearing; Jay Gold, J., at trial and sentencing), rendered January 5, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 41/2 to 9 years, 41/2 to 9 years and 2 to 4 years, respectively, unanimously affirmed.

The trial court properly discharged a juror, over objection, as grossly unqualified (CPL 270.35), after ascertaining that she was preoccupied with the health of her son, who had suffered a severe asthma attack the night before, requiring emergency room treatment, and whose condition had not improved because his medication was not working (see, People v Serrano, 203 AD2d 99, lv denied 83 NY2d 915). A one-day adjournment was not a viable option, the court having been advised by the juror that the duration of her son’s illness was not ascertainable. We also note that the juror’s discharge occurred at an early stage of the trial (see, People v DeMatteis, 186 AD2d 460, 461, lv denied 81 NY2d 969). Concur — Sullivan, J. P., Milonas, Rosenberger, Kupferman and Mazzarelli, JJ.