PEOPLE v. BANKS (2006)

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered September 4, 2003, convicting defendant, after a jury trial, of attempted rape in the first degree and sexual abuse in the first degree, and sentencing to concurrent terms of 10 years and 7 years, respectively, unanimously affirmed.

 The court properly exercised its discretion in denying defendant's request to call an expert who would testify about the general effects of crack cocaine use (see People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63 [2001];  People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351 [1983] ), as defendant failed to lay an adequate foundation for the testimony (see People v. Williams, 6 N.Y.2d 18, 23, 187 N.Y.S.2d 750, 159 N.E.2d 549 [1959], cert. denied 361 U.S. 920, 80 S.Ct. 266, 4 L.Ed.2d 188 [1959];  People v. Billups, 132 A.D.2d 612, 613, 518 N.Y.S.2d 9 [1987], lv. denied 70 N.Y.2d 873, 523 N.Y.S.2d 500, 518 N.E.2d 11 [1987] ).   There was insufficient evident to support a reasonable inference that the victim was under the influence of drugs at the time of the incident, and the proposed testimony would have been speculative and misleading (see People v. Frazier, 233 A.D.2d 896, 897, 649 N.Y.S.2d 542 [1996];  People v. Walker, 223 A.D.2d 414, 636 N.Y.S.2d 765 [1996], lv. denied 88 N.Y.2d 887, 645 N.Y.S.2d 462, 668 N.E.2d 433 [1996] ).   Accordingly, there was no violation of defendant's right to present a defense (see Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ).

 During deliberations, defendant asserted that a juror was grossly unqualified to serve, and, after refusing to consent to replacement of the juror by an alternate, moved for a mistrial.   After a probing inquiry, the court properly determined that the juror was not grossly unqualified, and properly denied the mistrial motion (see CPL 270.35[1];  People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ).   Despite the juror's initial concern for his safety should there be a guilty verdict, he assured the court that he could render an impartial verdict.   The court was in the best position to assess the juror's responses, and its determination that he could render an impartial verdict is supported by the record (see People v. Harris, 99 N.Y.2d 202, 212-213, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002];  People v. Santiago, 255 A.D.2d 63, 67-68, 691 N.Y.S.2d 22 [1999], lv. denied 94 N.Y.2d 829, 702 N.Y.S.2d 599, 724 N.E.2d 391 [1999] ).

We perceive no basis for reducing the sentence.