People v Barkley
2009 NY Slip Op 06999 [66 AD3d 1432]
October 2, 2009
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 9, 2009


The People of the State of New York, Respondent, v James D. Barkley, Appellant.

[*1] Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), for respondent.

Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered September 28, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree (two counts).

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]). We conclude that County Court "was within its discretion" at trial in discharging a sworn juror based on a medical emergency involving the juror's spouse (People v Tisdale, 270 AD2d 917 [2000], lv denied 95 NY2d 839 [2000]; see People v Aponte, 28 AD3d 672 [2006], lv denied 7 NY3d 785 [2006]; People v McCullin, 248 AD2d 277 [1998], lv denied 92 NY2d 928 [1998]). The court made the requisite "reasonably thorough inquiry" in determining that the juror was unavailable for continued service (CPL 270.35 [2] [a]), and properly placed on the record its reasons for discharging the juror after permitting the prosecutor and defense counsel to be heard on the matter (see CPL 270.35 [2] [b]). Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Pine, JJ.