PEOPLE v. ROGERS (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lisa, J.), entered January 31, 1996, which convicted him of robbery in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant asserts that the court improperly dismissed a juror who was observed sleeping during trial.   Contrary to the People's contention, this argument is preserved for appellate review (People v. Colavito, 70 N.Y.2d 996, 526 N.Y.S.2d 432, 521 N.E.2d 439;  People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   However, the defendant's argument is without merit.   The prosecutor stated that he observed the juror sleeping for two days through most of the testimony.   The court observed the juror with her eyes closed in the jury box on numerous occasions during three days of trial.   The trial court conducted a probing and tactful in camera inquiry of the juror, placed its determination on the record, and the determination is supported by the juror's answers (see, People v. Rodriguez, 71 N.Y.2d 214, 524 N.Y.S.2d 422, 519 N.E.2d 333).   Under such circumstances, the juror was properly dismissed as grossly unqualified (see, CPL 270.35;  People v. Adams, 179 A.D.2d 764, 578 N.Y.S.2d 643;  People v. South, 177 A.D.2d 607, 576 N.Y.S.2d 314;  People v. Russell, 112 A.D.2d 451, 492 N.Y.S.2d 420).

MEMORANDUM BY THE COURT.