People v. Phillips

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered September 2, 2003. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree, criminal mischief in the fourth degree and attempted petit larceny.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25 [2]), criminal mischief in the fourth degree (§ 145.00 [1]) and attempted petit larceny (§§ 110.00, 155.25). Defendant contends that Supreme Court erred in failing to discharge a juror who appeared to be asleep diming a portion of the tried. Defendant did not move to discharge that juror and thus failed to preserve his contention for review (see People v Wright, 16 AD3d 1113 [2005], lv denied 4 NY3d 857 [2005]; see also People v Punwa, 24 AD3d 471 [2005], lv denied 6 NY3d 779 [2006]). In any event, following the court’s inquiry of that juror, defendant consented to his continued service and declined the court’s offer to substitute an alternate juror for him. Thus, defendant ‘ ‘should not now be heard to complain” of the court’s failure to discharge the juror (People v Argibay, 57 AD2d 520 , 521 [1977], affd 45 NY2d 45 [1978], rearg denied 45 NY2d 839 [1978]; see People v Fenderson, 203 AD2d 585 , 586 [1994], lv denied 84 NY2d 825 [1994]). The court was entitled to rely on its own observation that the juror was attentive during the remainder of the trial, and the court was thus not required to conduct a further inquiry when defendant alleged that the juror had again fallen asleep (see People v Brown, 160 AD2d 172 , 174 [1990], lv denied 76 NY2d 785 [1990]).

Defendant further contends that the court’s Sandoval ruling,