PEOPLE v. QUINONES

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

The PEOPLE, etc., respondent, v. Joselito QUINONES, appellant.

Decided: June 26, 2007

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, STEVEN W. FISHER, and RUTH C. BALKIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Tonya Plank of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered July 19, 2004, convicting him of attempted murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that he was deprived of the right to a fair trial because the court failed to conduct an inquiry of a juror as to whether the juror was “grossly unqualified” under CPL 270.35(1) on the ground that the juror in question allegedly had been sleeping during portions of the jury charge, is unpreserved for appellate review (see People v. Bradley, 38 A.D.3d 793, 832 N.Y.S.2d 605;  People v. Martin, 28 A.D.3d 583, 584, 813 N.Y.S.2d 207;  People v. Gonzalez, 247 A.D.2d 328, 329, 670 N.Y.S.2d 180;  People v. Jones, 173 A.D.2d 359, 359, 570 N.Y.S.2d 4).   The defendant did not request that the court make an inquiry of the juror, nor did he move to discharge the juror.   The defendant thus demonstrated a willingness to continue to accept the juror as a trier of fact.   Therefore, he cannot be heard to complain (see CPL 470.05[2];  People v. Fenderson, 203 A.D.2d 585, 586, 611 N.Y.S.2d 220;  People v. Gonzalez, supra ).

 The defendant's contentions that the trial court's missing witness charge improperly omitted references to both the fact that the missing witness was only 10 years old (see Crosby v. Beaird, 93 A.D.2d 852, 461 N.Y.S.2d 350), and the burden of proof (see CJI[N.Y.]2d, Missing Witness) are unpreserved for appellate review (see CPL 470.05[2] ) where no specific requests for instructions were made prior to the charge, and no objections were raised or requests made to further instruct the jury following the charge.

The defendant's remaining contentions raised in his supplemental pro se brief-that the admission into evidence of the two 911 calls violated his constitutional right to be confronted with the witnesses against him, that he was deprived of his rights to due process and a fair trial by the trial court's excessive questioning, and that he was deprived of a fair trial by the prosecutor's misconduct on summation-are unpreserved for appellate review.

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