PEOPLE v. OCASIO (1999)

Judgment, Supreme Court, Bronx County (Lawrence Tonetti, J.), rendered September 12, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

 The court properly replaced a sworn juror over defendant's objection after the juror indicated her inability to continue serving due to extreme nervousness following her claimed recognition of persons in the audience.   Since defendant did not object to the sufficiency of the court's inquiry prior to the discharge of the juror, or request any further inquiry be made by the court or counsel, his present claim that the court should have conducted a further inquiry is unpreserved for our review (People v. Albert, 85 N.Y.2d 851, 623 N.Y.S.2d 848, 647 N.E.2d 1356), and we decline to review it in the interest of justice.   In any event, we find that the court's inquiry was sufficient and that its determination, after observing the juror's demeanor, that her state of mind, whether rational or not, rendered her grossly unqualified is entitled to great weight (see, People v. Santana, 221 A.D.2d 175, 633 N.Y.S.2d 297, lv. denied 87 N.Y.2d 925, 641 N.Y.S.2d 607, 664 N.E.2d 518).

The court properly exercised its discretion in striking certain evidence presented by defendant, since the evidence was too remote to be relevant to defendant's case.   Defendant's challenge to the procedure whereby this evidence was stricken is unpreserved and unavailing.   In any event, were we to find any error with respect to the striking of this evidence, we would find that it could not have deprived defendant of a fair trial.

We perceive no abuse of discretion in sentencing.

MEMORANDUM DECISION.