Opinion
July 16, 1992
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
The trial court dismissed a sworn juror, prior to the People's rebuttal case, after she called the court and stated that she was bedridden and too ill to attend the trial. As there was no indication that the juror would soon recover, the trial court's conclusion that she was "stricken seriously" was well-founded and her discharge pursuant to CPL 270.35 on the ground that she was unavailable was a proper exercise of discretion (see generally, People v. Page, 72 N.Y.2d 69). The prosecutor's comments in summation — that defendant had had an opportunity to hear the People's witnesses before testifying, and that the People's witnesses had no motive to lie — while inappropriate, do not warrant reversal, especially in view of the overwhelming evidence of guilt.
Concur — Sullivan, J.P., Rosenberger, Ross, Smith and Rubin, JJ.