PEOPLE v. WRIGHT (2005)

 On appeal from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10[1] ) and gang assault in the second degree (§ 120.06), defendant contends that County Court erred in failing to discharge a juror based on the possibility that the juror had been sleeping during portions of the trial.   That contention is not preserved for our review inasmuch as defendant failed to object to the court's inquiry of the juror (see People v. Martinez, 224 A.D.2d 326, 638 N.Y.S.2d 46, lv. denied 88 N.Y.2d 989, 649 N.Y.S.2d 396, 672 N.E.2d 622;  People v. Jones, 173 A.D.2d 359, 570 N.Y.S.2d 4, lv. denied 78 N.Y.2d 1077, 577 N.Y.S.2d 241, 583 N.E.2d 953) and, additionally, failed to move to discharge that juror (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). In any event, the court conducted an appropriate inquiry of the juror to ascertain whether he had been asleep and accepted the assurances of the juror that he had heard the entire case.   The court also noted that its own observations confirmed the juror's assurances.   Thus, “there is no basis to conclude that the juror in question should have been discharged as grossly unqualified” (Martinez, 224 A.D.2d at 326-327, 638 N.Y.S.2d 46;  see People v. Moore, 242 A.D.2d 882, 662 N.Y.S.2d 880, lv. denied 91 N.Y.2d 835, 667 N.Y.S.2d 689, 690 N.E.2d 498).   Contrary to defendant's further contentions, the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: