| People v Thomas |
| 2007 NY Slip Op 09343 [45 AD3d 483] |
| November 27, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher Thomas, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Frank Glaser of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered May 8,2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him, as a second felony drug offender, to a term of four years,unanimously affirmed.
The court properly substituted itself for another Justice who had presided earlier in the trial,after stating that it had familiarized itself with the case, and that the original Justice wasincapacitated due to an injury and was unable to return to the bench for at least one week.Although defendant requested a mistrial, raising other arguments, he did not preserve his presentarguments that there was insufficient evidence of the original Justice's incapacity, and that thereshould have been a continuance rather than a substitution. We decline to review these claims inthe interest of justice. Were we to review these claims, we would find them without merit. "[A]Judge may be substituted for another if the original Judge becomes incapacitated during a jurytrial, as long as the substitute indicates on the record the requisite familiarity with theproceedings and no undue prejudice occurs to the defendant or the People" (People vThompson, 90 NY2d 615, 621 [1997]). The substituted Justice was entitled to rely on theoriginal Justice's evaluation of his own incapacity, and a continuance would have resulted inunreasonable delay. Furthermore, defendant was not prejudiced by the substitution.Concur—Tom, J.P., Mazzarelli, Saxe, Marlow and Williams, JJ.