People v. Albert — 85 N.Y.2d 851

Majority

p. 851

[647 NE2d 1356, 623 NYS2d 848]

The People of the State of New York, Respondent, v James Albert, Also Known as James Albert, Jr., Appellant.

Decided February 23, 1995

p. 852

APPEARANCES OF COUNSEL

Peter Perlman, New York City, Mark E. Gimpel and E. Joshua Rosenkranz for appellant.

Robert T. Johnson, District Attorney of Bronx County, Bronx (Jonathan Svetkey of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issues defendant seeks to raise on this appeal were either unpreserved or waived at trial. Defense counsel failed to object to the manner in which the trial court investigated suggestions of juror misconduct and outside influence. Counsel also acquiesced in the scope and content of the court’s inquiry. Counsel made a timely motion for a mistrial when it was disclosed that information pertaining to the case was overheard by a juror outside the jury room and was then repeated to other jurors. However, counsel subsequently withdrew the request for relief, and the court took remedial measures on the assumption that counsel no longer desired a mistrial. Counsel’s subsequent effort to renew the mistrial motion, which was motivated by a simple change of heart rather than by any concern about the adequacy of the court’s remedial instructions, thus came too late, since it was made after the problem to which it was addressed had been cured in a

p. 853

manner that counsel himself had evidently found satisfactory. Finally, because none of the arguments raised on defendant’s CPL 330.30 (1) motion were raised prior to verdict, those arguments did not furnish a proper predicate for setting aside the verdict.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.