People v. Miller (247 A.D.2d 208, 1998)

Judgment, Supreme Court, New York County (William Wetzel, J.), rendered September 11, 1995, convicting defendant, after a jury trial, of attempted assault in the first degree (2 counts) and reckless endangerment in the first degree, and, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to four concurrent terms of 3 to 6 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There was ample evidence that defendant fired a loaded pistol at the victims. The court properly discharged a sworn juror, over defense objection, where the juror had concealed the fact that he was required to appear in Criminal Court during the instant trial to answer a pending misdemeanor charge being prosecuted by the same District Attorney’s Office, which charge he was angry about and intended to contest. After a thorough inquiry, the court reasonably concluded that this juror possessed a state of mind that would have influenced his deliberations and prevented him from rendering an impartial verdict (People v Buford, 69 NY2d 290, 299).

The prosecutor’s improper comment in violation of defendant’s right to remain silent did not deprive defendant of a fair trial, in view of the court’s curative instructions and the overwhelming evidence of guilt (People v Crociata, 123 AD2d 781; People v Moore, 82 AD2d 972).

Concur — Milonas, J. P., Rubin, Tom and Mazzarelli, JJ.