People v. Quinones

Jun 26, 2007
Versions:41 A.D.3d 868
840 N.Y.S.2d 804

Ordered that the judgment is affirmed.

The defendant‘s contention that he was deprived of the right to a fair trial because the court failed to conduct an inquiry of a juror as to whether the juror was “grossly unqualified” under CPL 270.35 (1) on the ground that the juror in question allegedly had been sleeping during portions of the jury charge, is unpreserved for appellate review (see People v Bradley, 38 AD3d 793 [2007]; People v Martin, 28 AD3d 583, 584 [2006]; People v Gonzalez, 247 AD2d 328, 329 [1998]; People v Jones, 173 AD2d 359 [1991]). The defendant did not request that the court make an inquiry of the juror, nor did he move to discharge the juror. The defendant thus demonstrated a willingness to continue to accept the juror as a trier of fact. Therefore, he cannot be heard to complain (see CPL 470.05 [2]; People v Fenderson, 203 AD2d 585, 586 [1994]; People v Gonzalez, supra).

The defendant‘s contentions that the trial court‘s missing witness charge improperly omitted references to both the fact that the missing witness was only 10 years old (see Crosby v Beaird, 93 AD2d 852 [1983]), and the burden of proof (see CJI2d[NY] Missing Witness) are unpreserved for appellate review (see CPL 470.05 [2]) where no specific requests for instructions were made prior to the charge, and no objections were raised or requests made to further instruct the jury following the charge.

The defendant‘s remaining contentions raised in his supplemental pro se brief—that the admission into evidence of the two 911 calls violated his constitutional right to be confronted with the witnesses against him, that he was deprived of his rights to due process and a fair trial by the trial court‘s excessive questioning, and that he was deprived of a fair trial by the prosecutor‘s misconduct on summation—are unpreserved for appellate review.