People v. Gueye

Nov 12, 2014
2006-11193
Versions:122 A.D.3d 768
994 N.Y.S.2d 683

Ordered that the judgment is affirmed.

The defendant contends that the Supreme Court improperly discharged a sworn juror and replaced him with an alternate. The defendant failed to preserve for appellate review his contention that the Supreme Court did not make a “reasonably thorough inquiry” (CPL 270.35 [2] [a]) into the unavailability of the juror, because he did not object to the sufficiency of the court‘s inquiry or request that any further inquiry be made (see People v King, 110 AD3d 1005, 1006 [2013], lv granted 23 NY3d 1022 [2014]; People v Morales, 87 AD3d 1165, 1166 [2011]; People v Settles, 28 AD3d 591, 591 [2006]). In any event, contrary to the defendant‘s contention, the Supreme Court conducted a reasonably thorough inquiry into the juror‘s unavailability and providently exercised its discretion in replacing the juror after determining that the juror would not appear within the two-hour time period set forth in CPL 270.35 (2) (see People v Jeanty, 94 NY2d 507 [2000]). The defendant‘s constitutional claim on this matter is also unpreserved for appellate review (see People v Ballard, 51 AD3d 1034, 1035-1036 [2008]; People v Angelo, 88 NY2d 217, 222 [1996]) and, in any event, without merit (see People v Jeanty, 94 NY2d at 517; People v Ballard, 51 AD3d at 1036).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Rivera, J.P., Leventhal, Hinds-Radix and Barros, JJ., concur.