| People v Armstrong |
| 2015 NY Slip Op 09459 [134 AD3d 1401] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAnthony F. Armstrong, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Canandaigua (Mark C. Davison of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered January 12, 2012. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree and intimidating a victim or witness in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofassault in the second degree (Penal Law § 120.05 [2]) and intimidating avictim or witness in the third degree (§ 215.15 [1]), defendant contends thatCounty Court erred in failing to discharge a juror who appeared to be asleep during aportion of the trial. Defendant failed to move to discharge that juror, and thus hiscontention is not preserved for our review (see People v Phillips, 34 AD3d 1231, 1231 [2006], lvdenied 8 NY3d 848 [2007]). Indeed, after bringing the matter to the court's attention,defense counsel stated that he did not "want to say anything right now," and the courtstated that it would continue to observe the juror. We thus conclude that "defendant'should not now be heard to complain' of the court's failure to discharge the juror"(id.).
Defendant failed to preserve for our review his contentions that the court failed tocomply with CPL 300.10 (4) by proceeding with summations before holding its chargeconference (see People vLugo, 87 AD3d 1403, 1404 [2011], lv denied 18 NY3d 860 [2011]), andthat the indictment was either duplicitous on its face or rendered duplicitous by thetestimony at trial (see People vAllen, 24 NY3d 441, 449-450 [2014]). We decline to exercise our power toreview those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
Finally, we conclude that the sentence is not unduly harsh or severe.Present—Scudder, P.J., Smith, Centra, Whalen and DeJoseph, JJ.