Opinion
2015-01-28
The PEOPLE, etc., respondent, v. Jose RIVERA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Arieh Schulman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered October 20, 2010, convicting him of robbery in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial because the trial 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 allegedly had been sleeping during portions of the trial is unpreserved for appellate review ( see CPL 470.05[2]; People v. Saunders, 83 A.D.3d 1100, 921 N.Y.S.2d 535 1100–1001; People v. Riley, 79 A.D.3d 911, 912, 912 N.Y.S.2d 413; People v. Quinones, 41 A.D.3d 868, 840 N.Y.S.2d 804; People v. Lunetta, 38 A.D.3d 1303, 832 N.Y.S.2d 358; People v. Bradley, 38 A.D.3d 793, 794, 832 N.Y.S.2d 605). The defendant neither requested that the court interview the juror nor moved for the juror's discharge ( see People v. Saunders, 83 A.D.3d at 1100–1101, 921 N.Y.S.2d 535; People v. Riley, 79 A.D.3d at 912, 912 N.Y.S.2d 413; People v. Quinones, 41 A.D.3d 868, 840 N.Y.S.2d 804; People v. Lunetta, 38 A.D.3d 1303, 832 N.Y.S.2d 358; People v. Bradley, 38 A.D.3d at 794, 832 N.Y.S.2d 605). In any event, as the court had the benefit of its own observations, further inquiry of the juror was not required ( see People v. Booker, 49 A.D.3d 658, 660, 854 N.Y.S.2d 430; People v. Lennon, 37 A.D.3d 853, 854, 830 N.Y.S.2d 770; People v. McIntyre, 193 A.D.2d 626, 597 N.Y.S.2d 442).
The defendant's contention that he was improperly sentenced based, in part, on crimes of which he was acquitted is unpreserved for appellate review ( see People v. Dubois, 116 A.D.3d 878, 983 N.Y.S.2d 734). In any event, his contention is without merit ( see id.; People v. Harris, 101 A.D.3d 900, 954 N.Y.S.2d 920). SKELOS, J.P., DILLON, MILLER and LaSALLE, JJ., concur.