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

The PEOPLE of the State of New York, Respondent, v. Chan LIN, Defendant-Appellant.

Decided: June 24, 1997

Before ELLERIN, J.P., and WALLACH, NARDELLI, RUBIN and MAZZARELLI, JJ. Donna Krone, for Respondent. Leigh R. Schachter, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered August 11, 1994, convicting defendant, after a jury trial, of attempted murder in the second degree and criminal use of a firearm in the first degree, and sentencing him to concurrent terms of 5 to 15 and 6 to 12 years, respectively, unanimously affirmed.

 Defendant expressly waived his present claim that, without making any inquiry, the court improperly permitted continued deliberations by a juror who had allegedly been asleep during portions of the trial, since defendant urged the court to make no inquiry, and took the position that the juror had not actually been sleeping (see, People v. Glover, 237 A.D.2d 104, 655 N.Y.S.2d 345).   Contrary to the position newly taken by defendant on appeal, we find that the existing record does not establish that the juror slept during any part of the trial.

The existing record reveals that the defendant received effective assistance of counsel (People v. Rivera, 71 N.Y.2d 705, 708-09, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400;  see also, People v. Hobot, 84 N.Y.2d 1021, 622 N.Y.S.2d 675, 646 N.E.2d 1102).

 We perceive no abuse of sentencing discretion.