PEOPLE v. PHILLIPS (2006)

 Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25 [2] ), criminal mischief in the fourth degree (§ 145.00[1] ) and attempted petit larceny (§§ 110.00, 155.25).   Defendant contends that Supreme Court erred in failing to discharge a juror who appeared to be asleep during a portion of the trial.   Defendant did not move to discharge that juror and thus failed to preserve his contention for review (see People v. Wright, 16 A.D.3d 1113, 790 N.Y.S.2d 800, lv. denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330;  see also People v. Punwa, 24 A.D.3d 471, 806 N.Y.S.2d 678, lv. denied 6 N.Y.3d 779, 811 N.Y.S.2d 346, 844 N.E.2d 801).   In any event, following the court's inquiry of that juror, defendant consented to his continued service and declined the court's offer to substitute an alternate juror for him.   Thus, defendant “should not now be heard to complain” of the court's failure to discharge the juror (People v. Argibay, 57 A.D.2d 520, 521, 393 N.Y.S.2d 713, affd. 45 N.Y.2d 45, 407 N.Y.S.2d 664, 379 N.E.2d 191, rearg. denied 45 N.Y.2d 839, 409 N.Y.S.2d 1031, 381 N.E.2d 630;  see People v. Fenderson, 203 A.D.2d 585, 586, 611 N.Y.S.2d 220, lv. denied 84 N.Y.2d 825, 617 N.Y.S.2d 145, 641 N.E.2d 166).   The court was entitled to rely on its own observation that the juror was attentive during the remainder of the trial, and the court was thus not required to conduct a further inquiry when defendant alleged that the juror had again fallen asleep (see People v. Brown, 160 A.D.2d 172, 174, 553 N.Y.S.2d 332, lv. denied 76 N.Y.2d 785, 559 N.Y.S.2d 990, 559 N.E.2d 684).

 Defendant further contends that the court's Sandoval ruling, permitting cross-examination concerning his prior convictions of burglary and attempted burglary, constitutes an abuse of discretion.   We reject defendant's contention, despite the similarity of those convictions to the present burglary charge (see People v. Montgomery, 288 A.D.2d 909, 909-910, 732 N.Y.S.2d 389, lv. denied 97 N.Y.2d 685, 738 N.Y.S.2d 301, 764 N.E.2d 405;  see generally People v. Hayes, 97 N.Y.2d 203, 207-208, 738 N.Y.S.2d 663, 764 N.E.2d 963).   Defendant failed to preserve for our review his challenge to the procedure used to obtain a saliva sample from him (see People v. Clark, 15 A.D.3d 864, 865, 788 N.Y.S.2d 800, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975, 5 N.Y.3d 787, 801 N.Y.S.2d 807, 835 N.E.2d 667;  People v. Afrika, 13 A.D.3d 1218, 1220, 787 N.Y.S.2d 774, lv. denied 4 N.Y.3d 827, 796 N.Y.S.2d 582, 829 N.E.2d 675), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defense counsel's failure to challenge that procedure, a challenge that likely would have been futile, does not constitute ineffective assistance of counsel (see People v. Murray, 7 A.D.3d 828, 830-831, 776 N.Y.S.2d 368, lv. denied 3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: