People v. Rivera

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered March 9, 1994, convicting defendant, after a jury trial, of burglary in the second degree, criminal possession of stolen property in the fifth degree and petit larceny, and sentencing him, as a second felony offender, to concurrent prison terms of 51/2 to 11 years, 1 year and 1 year, respectively, unanimously affirmed.

After the foreperson informed the court that he had seen the court reporter "rolling her eyes” and gesturing during defendant’s testimony, and, upon inquiry of the court, indicated that he would not be able to accept the readback of testimony transcribed by the reporter as the official record of the proceedings, the court discharged the foreperson and replaced him with an alternate juror. The other jurors asserted that they would not be swayed by any conduct of the reporter and would accept the readbacks as the official record of the testimony of the witnesses.

The court properly denied defendant’s request for a mistrial *356since the occurrence herein was not an "error or legal defect in the proceedings, or conduct inside or outside the courtroom, which [was] prejudicial to the defendant and deprive[d] him of a fair trial” (CPL 280.10 [1]). Instead, the court properly applied CPL 270.35 and followed the proper procedure in determining that the foreperson was "grossly unqualified”, discharging him and replacing him with an alternate juror (see, People v Rodriguez, 71 NY2d 214, 220-221). Concur — Sullivan, J. P., Ellerin, Rubin and Tom, JJ.