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

The PEOPLE of the State of New York, Respondent, v. Edward L. BAILEY Sr., Appellant.

Decided: February 25, 1999

Before:  MIKOLL, J.P., YESAWICH JR., SPAIN, CARPINELLO and GRAFFEO, JJ. Katherine Chason, Ithaca, for appellant. George M. Dentes, District Attorney, Ithaca, for respondent.

Appeal from a judgment of the County Court of Tompkins County (Sherman, J.), rendered April 4, 1997, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

On September 24, 1996, defendant entered his place of employment in the Village of Dryden, Tompkins County, and shot and killed a co-worker.   After a trial, at which defendant introduced extensive testimony concerning his mental condition at the time of the crime, the jury acquitted defendant of murder in the second degree, and finding that defendant acted under the influence of extreme emotional disturbance (see, Penal Law § 125.25[1] ), convicted him of manslaughter in the first degree (see, Penal Law § 125.20[1] ).   Sentenced to an indeterminate term of imprisonment of 12 1/212 to 25 years, defendant appeals.

During jury deliberations, several jurors informed County Court that juror number three was behaving oddly and at times appeared confused.   After conducting in camera interviews of each of the concerned jurors, as well as with juror number three, the court denied defendant's motion to discharge the juror and declare a mistrial, and permitted the jury to return to its deliberations.   Defendant maintains that this was reversible error, for the juror was “grossly unqualified to serve” (CPL 270.35[1] ).

 We affirm.   A juror is grossly unqualified “ ‘when it becomes obvious that [the] juror possesses a state of mind which would prevent the rendering of an impartial verdict’ ” (People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901, quoting People v. West, 92 A.D.2d 620, 622, 459 N.Y.S.2d 909 [Mahoney, P.J., dissenting], revd. on dissenting opn. below 62 N.Y.2d 708, 476 N.Y.S.2d 530, 465 N.E.2d 37).   The decision to disqualify turns on the facts of each particular case, and is to be arrived at only after the trial court has made a “probing and tactful inquiry” into the particular circumstances (People v. Buford, supra, at 299, 514 N.Y.S.2d 191, 506 N.E.2d 901;  see, People v. Townsley, 240 A.D.2d 955, 959, 659 N.Y.S.2d 906, lv. denied 90 N.Y.2d 943, 664 N.Y.S.2d 762, 687 N.E.2d 659).   If that has occurred, the trial court's findings are to be given great deference (see, People v. Matiash, 197 A.D.2d 794, 795, 602 N.Y.S.2d 977, lv. denied 82 N.Y.2d 899, 610 N.Y.S.2d 166, 632 N.E.2d 476).

 County Court's inquiry, conducted in the presence of both counsel and defendant, revealed that the foreperson and three other jurors noticed a problem with juror number three-who was eighty years of age-when they resumed their deliberations after a dinner break.   Of particular concern to them was his refusal to vote a second time on an issue on which he had previously voted because he believed he was not privy to the same information as the other jurors, his statement that he had only attended two sessions of the proceedings while the other jurors had attended many more, and his preoccupation with recounting events of his life that occurred 40 years ago.   Juror number three had also complained that he was having difficulty sleeping, which he attributed to a combination of a failure to take his sleep medication and the effects of being sequestered.   Questioned by the court, however, juror number three, who had served on several juries in the past, assured the court that he had no trouble “remembering the testimony or the law that the court gave.”   There was no indication that he was incapable of continuing to deliberate.

After assessing the information it had heard, County Court concluded that it was more than likely that juror number three's behavior was a manifestation of his being tired rather than that he lacked the capacity to serve as a juror, and directed that the jury continue its deliberations the following morning.   To ensure that those deliberations proceeded properly, the court instructed the foreperson to advise if the problems respecting juror three's conduct continued;  significantly, no such advice was forthcoming.   It is also noteworthy that when the jury was polled, juror number three unhesitatingly affirmed that the verdict announced was indeed his verdict.

 Defendant's claim that his sentence was harsh and excessive is unavailing.   As the sentence imposed is within the statutory limits and there has been no showing that County Court abused its discretion or that exceptional circumstances exist, it is not to be disturbed (see generally, People v. Kenny, 175 A.D.2d 404, 407, 572 N.Y.S.2d 102, lv. denied 78 N.Y.2d 1012, 575 N.Y.S.2d 820, 581 N.E.2d 1066).

ORDERED that the judgment is affirmed.



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