| People v Sanchez |
| 2014 NY Slip Op 09031 [123 AD3d 624] |
| December 30, 2014 |
| Appellate Division, First Department |
[*1]
|  The People of the State of New York,Respondent, v Joseph Sanchez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon ofcounsel), for appellant.
Joseph Sanchez, appellant pro se.
Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ann M. Donnelly, J.), rendered June 16,2011, convicting defendant, after a jury trial, of murder in the second degree, attemptedmurder in the second degree, assault in the first degree, and three counts of criminalpossession of a weapon in the second degree, and sentencing him, as a second violentfelony offender, to an aggregate term of 50 years to life, unanimously affirmed.
The court properly exercised its discretion when it dismissed a selected but unswornjuror whose absence, resulting from a transportation problem, would most likely havedelayed the trial for a full day, or at least for considerably more than two hours.Defendant did not preserve his claim that the court employed an incorrect standard indischarging the juror (see People v Velez, 255 AD2d 146 [1st Dept1998&rsqb, lv denied 93 NY2d 858 [1999] see also People v Norrell, 105AD3d 546, 546 [1st Dept 2013&rsqb, lv denied 21 NY3d1007 [2013&rsqb), and we decline to review it in the interest of justice.As an alternate holding, we reject it on the merits.
As in People v Davis (292 AD2d 168 [1st Dept 2002&rsqb,lv denied 98 NY2d 674 [2002&rsqb), defendant had no objectionto a delay in swearing the jurors after the completion of jury selection, and thuseffectively "agreed to create a category of jurors, i.e., selected but unsworn jurors, aboutwhich the Criminal Procedure Law is silent as to criteria for discharge" (id. at169). The record reveals that the court merely used CPL 270.35 as a guideline indeciding whether to delay the trial by waiting for the juror. In any event,"[t]he power to excuse an unsworn juror is much broaderthan the statutorily limited power to discharge a sworn juror" (Velez, 255AD2d at 146 [emphasis added&rsqb). Therefore, if the criteria set forthin CPL 270.35 for the dismissal of a sworn juror have been met, then, a fortiori, the sameconsiderations would warrant dismissal of a selected but unsworn juror (see People v Williams, 44AD3d 326, 326 [1st Dept 2007] [dismissal ofselected unsworn juror proper "even under the sworn juror standard"&rsqb, lvdenied 9 NY3d 1010 [2007&rsqb).
"The Court of Appeals has held that the 'two-hour rule' gives the court broaddiscretion to discharge any juror whom it determines is not likely to appear within twohours" (People v Kimes, 37AD3d 1, 24 [1st Dept 2006&rsqb, lv denied 8 NY3d 881[2007&rsqb, citing People v Jeanty, 94 NY2d 507, 517[2000&rsqb). Using the two-hour rule as a guideline, it is clear that thecourt providently exercised its discretion in replacing the juror with an alternate (seee.g. Davis, 292 AD2d at 169).
Contrary to defendant's argument, there is nothing in Judiciary Law§ 517 that sheds any light on the issue of selected but unsworn jurors. Itwould make no sense for the absence of express statutory guidance on this issue in theCriminal Procedure Law or elsewhere to render a court powerless when such a juror,while otherwise qualified for continued service, inordinately delays the trial, even thougha sworn juror may be dismissed under the same circumstances.
[*2][*3] Defendant's pro seineffective assistance of counsel claims involve matters not reflected in, or fullyexplained by, the record (see People v Rivera, 71 NY2d 705, 709[1988] People v Love, 57 NY2d 998[1982&rsqb), and thus may not be addressed on this appeal. In thealternative, to the extent the existing record permits review, we find that defendantreceived effective assistance under the state and federal standards (see People vBenevento, 91 NY2d 708, 713-714 [1998] Strickland vWashington, 466 US 668 [1984&rsqb). We have considered andrejected defendant's remaining pro se claims. Concur—Sweeny, J.P., Andrias,Saxe, DeGrasse and Gische, JJ.