240 A.D.2d 319
N.Y. App. Div.
1997

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered August 11, 1994, convicting defendant, after a jury trial, of attempted *320murder in the second degree and criminal use of a firearm in the first degree, and sentencing him to concurrent terms of 5 to 15 years and 6 to 12 years, respectively, unanimously affirmed.

Defendant expressly waived his present claim that, without making any inquiry, the court improperly permitted continued deliberations by a juror who had allegedly been asleep during portions of the trial, since defendant urged the court to make no inquiry, and took the position that the juror had not actually been sleeping (see, People v Glover, 237 AD2d 104). Contrary to the position newly taken by defendant on appeal, we find that the existing record does not establish that the juror slept during any part of the trial.

The existing record reveals that the defendant received effective assistance of counsel (People v Rivera, 71 NY2d 705, 708-709; People v Baldi, 54 NY2d 137, 146; see also, People v Hobot, 84 NY2d 1021).

We perceive no abuse of sentencing discretion. Concur— Ellerin, J. P., Wallach, Nardelli, Rubin and Mazzarelli, JJ.