People v. Blue

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 31/2 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 AD2d 240, lv denied 84 NY2d 826). Concur—Murphy, P. J., Wallach, Rubin, Tom and Andrias, JJ.