| People v Norrell |
| 2013 NY Slip Op 02508 [105 AD3d 546] |
| April 16, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daryl Norrell, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), renderedMarch 5, 2012, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in the third degree, and sentencing him, as a second felony drug offenderwhose prior felony conviction was a violent felony, to a term of nine years, unanimouslyaffirmed.
Defendant did not preserve any of his arguments regarding the court's discharge of aregular juror and an alternate who had been selected but not sworn, and the court'sprocedure for replacing these jurors, and we decline to review them in the interest ofjustice. Despite having a sufficient opportunity to be heard, defense counsel only askedthe court to excuse all jurors and start jury selection over, and he made only a vagueargument for doing so. Furthermore, counsel gave no indication, at any time, that hewanted the two jurors to retain their positions. As an alternative holding, we find that thecourt's actions were proper exercises of discretion under the circumstances presented(see People v Davis, 292 AD2d 168, 169 [1st Dept 2002], lv denied 98NY2d 674 [2002]; People v Velez, 255 AD2d 146, 146 [1st Dept 1998]). In anyevent, there was no basis for the drastic remedy of a mistrial, the only remedy requested(see People v Rice, 75 NY2d 929, 932-933 [1990]; see also People vYoung, 48 NY2d 995 [1980]).
The court properly denied defendant's CPL 330.30 (2) motion to set aside the verdicton the ground of jury misconduct, since defendant did not set forth a legal ground forsuch relief. In support of the motion, defendant presented only an affidavit from adissatisfied juror that was [*2]merely an attempt toimpeach the verdict with regard to the jury's deliberative process (see People vBrown, 48 NY2d 388, 393-394 [1979]; People v Redd, 164 AD2d 34, 38-39[1st Dept 1990]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,DeGrasse, Abdus-Salaam, Manzanet-Daniels and Clark, JJ.