| People v Rivera |
| 2015 NY Slip Op 00790 [124 AD3d 917] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Rivera, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. 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 degreeand criminal possession of stolen property in the fifth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial because the trial courtfailed 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 duringportions of the trial is unpreserved for appellate review (see CPL 470.05 [2]; People v Saunders, 83 AD3d1100, 1100-1101 [2011]; People v Riley, 79 AD3d 911, 912 [2010]; People v Quinones, 41 AD3d868 [2007]; People vLunetta, 38 AD3d 1303 [2007]; People v Bradley, 38 AD3d 793, 794 [2007]). Thedefendant neither requested that the court interview the juror nor moved for the juror'sdischarge (see People v Saunders, 83 AD3d at 1100-1101; People vRiley, 79 AD3d at 912; People v Quinones, 41 AD3d 868 [2007]; People v Lunetta, 38 AD3d1303 [2007]; People v Bradley, 38 AD3d at 794). In any event, as the courthad the benefit of its own observations, further inquiry of the juror was not required (see People v Booker, 49 AD3d658, 660 [2008]; People vLennon, 37 AD3d 853, 854 [2007]; People v McIntyre, 193 AD2d 626[1993]).
The defendant's contention that he was improperly sentenced based, in part, oncrimes of which he was acquitted is unpreserved for appellate review (see People v Dubois, 116AD3d 878 [2014]). In any event, his contention is without merit (see id.; People v Harris, 101 AD3d900 [2012]). Skelos, J.P., Dillon, Miller and LaSalle, JJ., concur.