| People v Williams |
| 2007 NY Slip Op 07339 [44 AD3d 326] |
| October 4, 2007 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JamarWilliams, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (David M. Cohn of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered January 27,2006, convicting defendant, after a jury trial, of two counts each of criminal possession of aweapon in the second and third degrees, and sentencing him, as a second violent felony offender,to an aggregate term of 11 years, unanimously affirmed.
The court properly exercised its discretion when it discharged a selected but unsworn jurorand replaced her with an alternate, after jury selection had been completed and no prospectivejurors remained. The juror had a scheduling conflict involving a funeral, and the recorddemonstrates that she was not fit for jury service in that the conflict would make it difficult forher to focus on the trial (see People v Velez, 255 AD2d 146 [1998], lv denied 93NY2d 858 [1999]). Defendant's argument that the standard for discharging a sworn jurorpursuant to CPL 270.35 should apply here is unpreserved (see People v Davis, 292 AD2d168, 169 [2002], lv denied 98 NY2d 674 [2002]), and we decline to review it in theinterest of justice. Were we to review this claim, we would reject it (see People v Velez,255 AD2d 146 [1998], supra). In any event, even under the sworn juror standard, thecourt had ample basis for discharging the juror.
The court properly admitted as excited utterances the nontestifying declarant's statements to a911 operator that he had just encountered two armed intruders in his apartment building. Theevidence, including suppression hearing testimony upon which the court relied without objection,established that the declarant was still under the influence of the stress of that incident (see People v Johnson, 1 NY3d 302[2003]). The admission of the excited utterances did not violate defendant's right toconfrontation, since the statements were primarily made "to enable police assistance to meet anongoing emergency" (Davis v Washington, 547 US —, —, 126 S Ct 2266,2273 [2006]; People v Bradley, 8NY3d 124 [2006]; People vSmith, 37 AD3d 333, 334 [2007], lv denied 8 NY3d 950 [2007]).
For the reasons stated in our decision in People v Lemos (34 AD3d 343 [2006], lv denied 8 NY3d924 [2007]), we find unpreserved defendant's argument that the court unlawfully imposed amandatory surcharge and fees when it did so only in writing, and we decline to review [*2]it in the interest of justice. Were we to review it, we would find itwithout merit. Concur—Andrias, J.P., Sullivan, Catterson, McGuire and Malone, JJ.