| People v Nettles |
| 2011 NY Slip Op 07155 [88 AD3d 492] |
| October 13, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gerrod Nettles, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered December 3,2009, convicting defendant, after a jury trial, of gang assault in the first degree and two counts ofassault in the first degree, and sentencing him to an aggregate term of 15 years, unanimouslyaffirmed.
At the beginning of jury selection, the court offered to speak individually to potential jurymembers who believed they would have difficulty being fair. The court asked for a show ofhands to see who wanted to speak individually, cautioning that "[b]y not raising your hands now,you're telling me that you will not have anything to divulge to us regarding your qualification."Seven of the 17 panelists who raised work-related or financial concerns were dismissed.
After 12 jurors were sworn, the court began the process of selecting alternate jurors. During abreak, the court informed the parties that a juror "has a problem." The juror, who had not spokenup before, entered the courtroom and the court asked the juror what the problem was. The jurorreplied: "I don't get paid." The court asked the juror what kind of company he works for and howmuch he earns. The juror explained that he works as an hourly consultant for a private companyand that he makes $30,000. After the juror left the courtroom, defense counsel stated that he wasconcerned that the juror would race through deliberations and that the court had previouslyexcused jurors who gave similar annual income. Counsel, however, never asked the court to poseany additional questions to the juror and the juror remained as part of the sworn jury.
CPL 270.35 (1) provides that a sworn juror must be discharged if "the court finds, from factsunknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in thecase." A juror is "grossly unqualified" only "when it becomes obvious that a particular jurorpossesses a state of mind which would prevent the rendering of an impartial verdict" (Peoplev Buford, 69 NY2d 290, 298 [1987] [internal quotation marks and citation omitted]).
Defendant failed to preserve his claim that the court made an insufficient inquiry of thesworn juror, and we decline to reach it in the interest of justice. After the court questioned thejuror, counsel raised no complaints about the scope of the court's inquiry. Counsel never askedthe court to pose any additional questions, and in particular did not request that the court ask the[*2]juror whether his financial concerns would affect his abilityto be fair. Nor did counsel seek to question the juror himself about his ability to render animpartial verdict. Thus, defendant's claim that the court failed to make an adequate inquiry of thesworn juror is unpreserved (see People vHicks, 6 NY3d 737, 739 [2005] [the defendant's claim that the court failed to conduct asufficient inquiry of a juror does not present a preserved question of law "(i)n the absence of aprotest to the scope or intensity of the court's inquiry"]; People v Dandridge, 45 AD3d 330, 331 [2007], lv denied 9NY3d 1032 [2008]; People vMorales, 36 AD3d 631, 632 [2007], lv denied 8 NY3d 925 [2007]).
Based on the juror's brief statement about not being paid, the court properly declined todismiss the sworn juror. Prior to jury selection, when the court offered to speak with jurors whobelieved they would have difficulty being fair, this juror did not ask to address the court. Nor didthe juror express any concerns about being fair when he belatedly raised the issue of not beingpaid. Thus, nothing the sworn juror said in any way suggested that he would be incapable ofrendering an impartial verdict or that he was otherwise unfit to serve (see People vButler, 281 AD2d 333 [2001], lv denied 96 NY2d 899 [2001] [where sworn juror"expressed concern and bitterness about the time and money he was losing," discharge notrequired where the juror had never expressed any doubt about his ability to render an impartialverdict]; People v Nocedo, 161 AD2d 297, 298 [1990] ["(m)ere concern on the part of ajuror that his continued service could result in financial hardship is insufficient to warrant hisdischarge"]).
The verdict was based on legally sufficient evidence and was not against the weight of theevidence.
We reject defendant's challenges to the court's evidentiary rulings.
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J., Tom,Friedman, Catterson and Richter, JJ.