| People v Vaughn |
| 2015 NY Slip Op 07434 [132 AD3d 456] |
| October 13, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Vaughn, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), forrespondent.
Judgment, Supreme Court, New York County (Analisa Torres, J., at hearing; LewisBart Stone, J., at jury trial and sentencing), rendered December 19, 2012, convictingdefendant of burglary in the first degree and robbery in the first degree, and sentencinghim, as a second violent felony offender, to concurrent terms of 20 years, unanimouslyaffirmed.
The court properly denied defendant's suppression motion. There is no basis fordisturbing the court's credibility determinations. The police observed the occupants of acar rolling what appeared to be a marijuana cigarette, and the officers also detected theodor of marijuana. This provided probable cause to arrest the occupants and search thecar (see e.g. People vRivera, 127 AD3d 622 [1st Dept 2015]).
After conducting a suitable inquiry and determining that an absent juror would notappear within two hours after the time that the trial was scheduled to resume, the courtproperly exercised its discretion in substituting an alternate juror (see CPL 270.35[2] [a]; People v Jeanty, 94 NY2d 507, 516 [2000]). The juror had called in froma doctor's appointment, stating she would not make it to court that day, and thereafter shewas unable to be reached by cell phone. Under the circumstances, the court was notobligated to wait a full two hours before replacing the juror (see e.g. People v Lopez, 18AD3d 233, 234 [1st Dept 2005], lv denied 5 NY3d 807 [2005]).
The court properly exercised its discretion when it used the language of the CriminalJury Instructions on the subject of eyewitness identification, and related mattersconcerning expert [*2]witnesses, but denied defendant'srequest to add language from a charge used in New Jersey (see People v Washington, 56AD3d 258, 259 [1st Dept 2008], lv denied 11 NY3d 931 [2009]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Renwick, Andrias and Manzanet-Daniels, JJ.