PEOPLE v. STEPHENS (2005)

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered February 27, 2002, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the trial court should have dismissed three seated jurors who voiced possible biases after they were seated (see CPL 270.35 [1] ).   This contention is unpreserved for appellate review (see CPL 470.05 [2];  People v. Pain, 298 A.D.2d 604, 748 N.Y.S.2d 691;  People v. Sell, 283 A.D.2d 920, 725 N.Y.S.2d 486).   In any event, the contention is without merit, as the jurors unequivocally assured the trial court that they would remain fair and impartial (see People v. Delgadillo, 13 A.D.3d 643, 786 N.Y.S.2d 327, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975).   Moreover, the record clearly demonstrates that none of the jurors were “grossly unqualified” (CPL 270.35[1] ) by their inconsequential relationships with members of the Sheriff's Department or potential prosecution witnesses (see People v. Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191, 506 N.E.2d 901).   The record does not demonstrate that any juror was possessed of a state of mind which would prevent the rendering of an impartial verdict (id.;   People v. Sweeney, 16 A.D.3d 602, 792 N.Y.S.2d 149).   Thus, any attempt by the defense counsel to disqualify those jurors would have been futile (see People v. Rodriguez, 71 N.Y.2d 214, 524 N.Y.S.2d 422, 519 N.E.2d 333;  People v. Buford, supra ).   Accordingly, the additional contention that the defendant was denied the effective assistance of counsel is without merit (see People v. Mason, 299 A.D.2d 724, 725, 750 N.Y.S.2d 364;  see also People v. Johnson, 233 A.D.2d 887, 649 N.Y.S.2d 620).

The defendant also contends that the evidence was legally insufficient and that the verdict was against the weight of the evidence.   However, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).