PEOPLE v. CLARK

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Shawn M. CLARK, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  SCUDDER, J.P., KEHOE, SMITH, GREEN, AND PINE, JJ. Raymond W. Bulson, Portville, for Defendant-Appellant. Edward M. Sharkey, District Attorney, Little Valley (Lori Pettit Rieman of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him after a jury trial of three counts of sodomy in the first degree (Penal Law former § 130.50[4] ) and one count of endangering the welfare of a child (§ 260.10[1] ), defendant contends that County Court erred in failing to dismiss a juror as grossly unqualified pursuant to CPL 270.35(1) because the juror reported to the court at the commencement of deliberations that she had met the victim a few times through professional contact with the victim's mother.   Defendant failed to object to the manner in which the court investigated whether the juror should be dismissed as grossly unqualified and thus has failed to preserve his contention for our review (see People v. Felong, 283 A.D.2d 951, 724 N.Y.S.2d 380, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119;  People v. Donk, 259 A.D.2d 1018, 1019, 688 N.Y.S.2d 333, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510).   In any event, we conclude that defendant's contention is without merit because the juror unequivocally stated that her limited association with the victim would not affect her ability to remain impartial (see People v. Larrabee, 201 A.D.2d 924, 925, 607 N.Y.S.2d 769, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987;  People v. Brantley, 168 A.D.2d 949, 564 N.Y.S.2d 899, lv. denied 77 N.Y.2d 904, 569 N.Y.S.2d 936, 572 N.E.2d 619).   Finally, 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: