| People v Snowden |
| 2007 NY Slip Op 07883 [44 AD3d 492] |
| October 18, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v George Snowden, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Richard L. Sullivan of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 15, 2005,convicting defendant, after a jury trial, of criminal sale of a controlled substance in the thirddegree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years,unanimously affirmed.
The court properly exercised its discretion in dismissing as "grossly unqualified" a swornjuror who was observed sleeping during trial (see People v Simpkins, 16 AD3d 601 [2005], lv denied 5NY3d 769 [2005]; People v Russell, 112 AD2d 451 [1985]). Defense counsel firstbrought it to the court's attention that the juror had been sleeping. When questioned by the court,the juror stated that she was tired from having stayed up late, but that she had been payingattention to the proceedings. The court allowed the juror to remain. Thereafter, during thesummations and charge, the court and the prosecutor saw the juror repeatedly falling asleep, withher head snapping back several times. Other jurors appeared to notice this behavior, and the courtexpressly stated that it unsuccessfully had sought to keep the juror alert during the court charge.In these circumstances, the court properly dismissed her. A determination made by a trial courtthrough its unique opportunity to observe demeanor is entitled to considerable deference.Although defendant objected to discharge of the juror, he did not preserve his claim that the courtshould have, once again, asked the juror if she had been sleeping, and we decline to review it inthe interest of justice. Were we to review this claim, we would find that further inquiry wasunnecessary. In view of the court's own observations, it would not have been required to acceptany repetition the juror might have made of her prior insistence that she had been awake (seePeople v Russell, 112 AD2d at 453). Thus, further inquiry would have been meaningless.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline toreview them in the interest of justice. Were we to review them, we would find that althoughcertain comments were improper, they do not provide a basis for [*2]reversal (see People v Overlee, 236 AD2d 133 [1997],lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119[1992], lv denied 81 NY2d 884 [1993]). Concur—Nardelli, J.P., Gonzalez,Sweeny, McGuire and Kavanagh, JJ.