People v. Riccardi

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BRACKEN
• Citation: People v. Riccardi, 605 N.Y.S.2d 112, 199 A.D.2d 432 (N.Y. App. Div. 1993)
• Decision Date: 20 December 1993
• Parties: The PEOPLE, etc., Respondent, v. Michael RICCARDI, Appellant.

Page 112

605 N.Y.S.2d 112

199 A.D.2d 432

The PEOPLE, etc., Respondent, v. Michael RICCARDI, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 20, 1993.

Joyce B. David, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Victor Barall and David O. Leiwant, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, LAWRENCE and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered March 16, 1992, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

We disagree with the defendant's contention that the trial court committed reversible error when it discharged a sworn juror as unavailable and replaced him with an alternate juror, based on an ex parte communication between the court and the juror. Initially, we note that the defendant's claim, made for the first time on appeal, as to the sufficiency of the court's inquiry into the nature of the juror's unavailability, is unpreserved for appellate review. The defendant's objection at trial made no mention of the sufficiency of the court's inquiry. Rather, the objection was based upon the juror being the only Italian-American on the panel. An objection on this ground was inadequate to alert the court to the current claim (see, CPL 470.05[2]; People v. Qualls, 55 N.Y.2d 733, 734, 447 N.Y.S.2d 149, 431 N.E.2d 634; People v. Peters, 175 A.D.2d 220, 221, 572 N.Y.S.2d 81).

In any event, the record reveals that the discharged juror informed the court, prior to the conclusion of the defendant's evidence, that his wife was to undergo surgery and he would thus be unavailable for two days. The court placed this information on the record and replaced the juror with an alternate, over the defendant's objection. Under the circumstances, the discharge of the juror constituted a proper exercise of the court's discretion (see, People v. Delgado, 187 A.D.2d 447, 589 N.Y.S.2d 536; People v. DeMatteis, 186 A.D.2d 460, 461, 589 N.Y.S.2d 153; People v. Hill, 182 A.D.2d 640, 641, 582 N.Y.S.2d 246; People v. Weiler, 194 A.D.2d 894, 599 N.Y.S.2d 149).

The defendant also contends that the evidence was insufficient to support a finding that the victim's wounds constituted serious physical injury pursuant to Penal Law § 10.00(10). We disagree. Viewing the evidence adduced at trial in...