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PEOPLE v. McCLENTON

213 A.D.2d 1 (1995)

630 N.Y.S.2d 290

The People of the State of New York, Respondent, v. Anthony McClenton, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

July 27, 1995

Attorney(s) appearing for the Case

Jennifer L. Colyer of counsel, New York City (Mark Gimpel on the brief; E. Joshua Rosenkranz and Ira Mickenberg, Office of Appellate Defender, and Fried, Frank, Harris, Shriver & Jacobson, attorneys), for appellant.

Arthur D. Middlemiss of counsel, New York City (Mark Dwyer on the brief; Robert M. Morgenthau, District Attorney of New York County, attorney), for respondent.

ASCH, NARDELLI and TOM, JJ., concur with MAZZARELLI, J.; WALLACH, J. P., dissents in a separate opinion.

MAZZARELLI, J.

The trial court erred when it denied the defendant's timely request to make a "probing and tactful inquiry" of a juror who, before deliberations even commenced, wrote a note which indicated that the juror's discharge might be required under CPL 270.35. Because nisi prius failed to conduct any inquiry whatsoever, the court's implied finding that the allegedly wayward juror was not "grossly unqualified...

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