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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Herbert DAUGHTRY, a/k/a Herb Daughtry, Defendant-Appellant.

Decided: October 22, 1998

Before NARDELLI, J.P., RUBIN, TOM and MAZZARELLI, JJ. Hilary Hassler, for Respondent. Ann Cypher, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Richard Lowe III, J.), rendered December 7, 1993, convicting defendant, after a jury trial, of murder in the second degree and conspiracy in the second degree (two counts), and sentencing him, as a persistent felony offender, to two concurrent terms of 25 years to life and a consecutive term of 25 years to life, unanimously affirmed.

 The court properly admitted into evidence, under the declaration against penal interest exception to the hearsay rule, the videotaped confession of a codefendant since the People met all the criteria for admissibility thereof (see, People v. Morgan, 76 N.Y.2d 493, 497-498, 561 N.Y.S.2d 408, 562 N.E.2d 485;  People v. Shortridge, 65 N.Y.2d 309, 312, 491 N.Y.S.2d 298, 480 N.E.2d 1080;  People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612).   The People's offer of independent proof tended to confirm the truth of the facts asserted in the declaration (see, People v. Shortridge, supra, 65 N.Y.2d at 313, 491 N.Y.S.2d 298, 480 N.E.2d 1080;  People v. Settles, supra, 46 N.Y.2d at 169-170, 412 N.Y.S.2d 874, 385 N.E.2d 612).   Contrary to defendant's claim, the confession did not demonstrate that the declarant sought to minimize his own culpability by maximizing defendant's or by shifting blame to defendant (see, People v. Thomas, 68 N.Y.2d 194, 507 N.Y.S.2d 973, 500 N.E.2d 293, cert denied 480 U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794).   Instead, the declarant's accounts of what occurred remained sufficiently consistent, and only increased his own culpability for the murder.   In addition, the declarant's “identification” of defendant as the person who paid him to commit the murder was against the declarant's penal interest, because it provided the motive for the crime (see, People v. Piazza, 48 N.Y.2d 151, 157, 422 N.Y.S.2d 9, 397 N.E.2d 700).   In any event, the declarant never stated with certainty that the photograph presented to him was of defendant.   Finally, the circumstances under which the statement was made by the declarant do not cast doubt on its reliability.

 The plea allocutions of defendant's coconspirators were properly admitted into evidence under the same exception to the hearsay rule (see, People v. Thomas, 68 N.Y.2d, supra, at 197, 507 N.Y.S.2d 973, 500 N.E.2d 293).   Defendant's claim concerning the indictment language contained in the plea allocution of one of the codefendants is not preserved and we decline to review it in the interest of justice.   Were we to reach the issue, we would find that the use of the indictment language in this context did not relieve the People of their burden of proving that defendant was part of a conspiracy.

 Having failed to object to the manner in which the court investigated the defense claim that a juror was asleep during a portion of the trial, and having failed to request that the inquiry of the juror be conducted on the record, defendant's claim that the court failed to conduct a sufficient inquiry is unpreserved and unreviewable (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).

 In any event, on the existing record, we conclude that the court providently exercised its discretion in denying defendant's motion to discharge the juror as grossly unqualified (see, People v. Marks, 225 A.D.2d 1087, 639 N.Y.S.2d 196, lv. denied 88 N.Y.2d 881, 645 N.Y.S.2d 456, 668 N.E.2d 427;  People v. Hernandez, 198 A.D.2d 299, 603 N.Y.S.2d 170, lv. denied 83 N.Y.2d 853, 612 N.Y.S.2d 385, 634 N.E.2d 986).

 The challenged portions of the People's summation were largely based on the evidence and responsive to the defense summation (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724), and could not have deprived defendant of a fair trial.

Defendant's remaining claims are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.