| People v Wiggins |
| 2015 NY Slip Op 07568 [132 AD3d 514] |
| October 15, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Reginald Wiggins, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered onJune 12, 2013, convicting defendant, after a jury trial, of assault in the second degree,and sentencing him to a prison term of 4
Defendant's claim that the court should have inquired into a juror's fitness tocontinue serving is unpreserved because defendant, who requested other remedies, failedto join in his codefendant's request for an inquiry (see People v Buckley, 75NY2d 843 [1990]), and we decline to review it in the interest of justice. As an alternativeholding, we find that the court properly determined, based on its own observations, thatno inquiry was necessary (see People v Maldonado, 279 AD2d 406 [1st Dept2001], lv denied 96 NY2d 802 [2001]; see also People v Buford, 69NY2d 290, 299 [1987]). The juror's brief outburst telling the codefendant's counsel notto use a racial epithet "again" during cross-examination demonstrated that she wasbothered by the repeated use, at least four times, of the phrase, rather than by counsel'sinitial line of questioning, in which he was eliciting the relevant language used in aconversation. In any event, a juror's mere annoyance with a question or with counselwould not be a basis for discharge (Buford, 69 NY2d at 298-299). Accordingly,the court's instructions to all of the jurors to refrain from speaking from the jury box, torefrain from holding any questions they did not like against any of the parties, and to alertthe court if they believed they could not be fair and impartial, sufficed under thesecircumstances (see People vMejias, 21 NY3d 73, 80 [2013]; People v Marshall, 106 AD3d 1, 10 [1st Dept 2013], lvdenied 21 NY3d 1006 [2013]).
Defendant's similarly unpreserved contention that the juror's outburst warranted aninquiry because she might have been inclined to usurp the court's role and disregard anylater instructions is speculative, and further belied by the record, as the juror refrainedfrom making any further comments from the jury box after the court told her not to do so.Concur—Friedman, J.P., Sweeny, Saxe, Moskowitz and Gische, JJ.