| People v Thomas |
| 2015 NY Slip Op 05506 [129 AD3d 1110] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven B. Thomas, Appellant. |
Bruce R. Bekritsky, Mineola, N.Y., for appellant, and appellant pro se.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley andCristin N. Connell of counsel; Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Grella, J.), rendered July 12, 2013, convicting him of robbery in the second degree andcriminal possession of a weapon in the third degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court improvidently exercised itsdiscretion in declining to discharge a juror who appeared to be sleeping at certain timesduring the trial is unpreserved for appellate review (see People v Quinones, 41 AD3d 868, 868 [2007]; People v Phillips, 34 AD3d1231, 1231 [2006]; Peoplev Wright, 16 AD3d 1113, 1113 [2005]). At trial, the defendant expressly refusedto consent to have the juror replaced and, thus, also waived his challenge to that juror (see People v Wlasiuk, 90AD3d 1405, 1410 [2011]; People v Jorge, 23 AD3d 254, 254 [2005]; People vHinton, 302 AD2d 1008, 1009 [2003]; People v Farmer, 295 AD2d 290, 290[2002]; People v Chan Lin, 240 AD2d 319, 320 [1997]). In any event, thedefendant's contention that the juror was not qualified to serve is without merit (see People v Herring, 19 NY3d1094, 1095-1096 [2012]; People v Robinson, 121 AD3d 1179, 1181 [2014]; People v Buel, 53 AD3d930, 931 [2008]). The trial court properly inquired of the juror as to whether thejuror had been sleeping during the trial, and the juror denied it. The juror also indicatedthat, although his eyes had been closed at times during the trial, he had been listening,and he did not miss anything, including the demonstrative evidence shown to thejury.
Contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contentions, raised in his pro se supplemental brief, also are withoutmerit. Mastro, J.P., Chambers, Maltese and Duffy, JJ., concur.