

People v Barksdale (2015 NY Slip Op 05955)





People v Barksdale


2015 NY Slip Op 05955


Decided on July 8, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on July 8, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.


2012-01422
 (Index No. 4150/10)

[*1]The People of the State of New York, respondent,
vStephen Barksdale, appellant.


Lynn W. L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Benjamin D. White of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.), rendered December 16, 2011, convicting him of burglary in the first degree, robbery in the first degree, criminal trespass in the second degree, and kidnaping in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not improperly discharge a sworn juror and replace him with an alternate. The court conducted a reasonably thorough inquiry into the juror's unavailability and providently exercised its discretion in replacing the juror after determining that the juror would not appear within the two-hour time period set forth in CPL 270.35(2) (see People v Jeanty, 94 NY2d 507). The defendant's claim regarding the constitutionality of the discharge of the juror is unpreserved for appellate review (see People v Angelo, 88 NY2d 217, 222; People v Gueye, 122 AD3d 768, 768; People v Ballard, 51 AD3d 1034, 1035-1036) and, in any event, without merit (see People v Jeanty, 94 NY2d at 517; People v Ballard, 51 AD3d at 1036).
DILLON, J.P., LEVENTHAL, COHEN and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


