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People v. Viera

State of New York Supreme Court, Appellate Division Third Judicial Department


July 22, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RICHARD J. VIERA JR., APPELLANT.

The opinion of the court was delivered by: McCarthy, J.

MEMORANDUM AND ORDER

Calendar Date: May 26, 2010

Before: Peters, J.P., Rose, Lahtinen, McCarthy and Egan Jr., JJ.

Appeal from a judgment of the County Court of Fulton County (Hoye, J.), rendered April 3, 2009, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts) and attempted assault in the second degree.

Defendant was charged with various crimes as a result of his sale of narcotics to a confidential informant and a subsequent scuffle with police. A jury convicted him of five crimes -- attempted assault in the second degree and two counts each of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. This appeal ensued.

Defendant's sole contention on appeal is that he was deprived of a fair trial because a sitting juror should have been removed from the jury as grossly unqualified to serve (see CPL 270.35 [1]). This argument is unpreserved for our review because defendant did not object to the scope of County Court's inquiry of the juror after she sent a note to the court (see People v Hicks, 6 NY3d 737, 739 [2005]; People v Kelly, 65 AD3d 714, 715 [2009], lv denied 13 NY3d 860 [2009]; People v Busreth, 35 AD3d 965, 967 [2006], lv denied 8 NY3d 920 [2007]), or request that she be discharged from the jury (see People v Brennan, 290 AD2d 574, 576 [2002], lv denied 97 NY2d 751 [2002]). In fact, after the court's inquiry, defense counsel indicated that he had no further concerns regarding this juror. As defendant's sole argument is unpreserved, we affirm.

Peters, J.P., Rose, Lahtinen and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

20100722

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