Calendar Date: September 10, 2013
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: Lahtinen, J.P., Stein, Spain and Egan Jr., JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 16, 2011 in Albany County, upon a verdict convicting defendant of the crime of manslaughter in the second degree.
At some point after 8:00 p.m. on October 29, 2010, defendant, who had been drinking since approximately 11:30 a.m. that day, and his pregnant girlfriend (hereinafter the victim) left their residence in the victim's 2005 Mitsubishi Gallant to go to the store. As the vehicle proceeded northbound on Lishakill Road in the Town of Colonie, Albany County, it crossed over the fog line on the east shoulder, prompting the driver to overcorrect. The vehicle then crossed the center line of the road and struck a speed limit sign on the opposite shoulder, at which point the right rear tire went flat, causing the vehicle to roll onto its roof. The vehicle continued to travel — inverted — in a generally northerly direction across the lawn of a residence until it struck — and sheared off — a sizeable tree. Upon impact with this tree, which occurred just behind the left front tire of the vehicle, the engine compartment of the Mitsubishi separated from the rest of the car. The passenger compartment — with most of the weight now concentrated in the rear of the vehicle — continued north, spinning counterclockwise and righting itself before finally coming to rest upon its impact with a second tree. During the course of these events, both defendant and the victim — neither of whom were wearing seat belts — were ejected from the vehicle through either the driver's-side window or the driver's side of the windshield,  as a result of which defendant sustained serious injuries and the victim died. Based upon yaw marks observed on the pavement at the scene, the actual speed of the Mitsubishi prior to impact was calculated to be 76.92 miles per hour . A subsequent examination of the vehicle revealed that the driver did not apply the brakes prior to the crash, and road conditions, weather conditions and mechanical issues were ruled out as contributing factors to the accident.
The initial police investigation concluded that defendant was driving on the night in question and, as a result, defendant was indicted and charged in a 10-count indictment with, insofar as is relevant here, aggravated vehicular homicide, manslaughter in the second degree, driving while intoxicated per se and driving while intoxicated . Following a lengthy jury trial, defendant was convicted of manslaughter in the second degree and acquitted of the remaining counts. Defendant thereafter was sentenced as a second felony offender to a prison term of 7½ to 15 years. Defendant's subsequent motion to set aside the verdict was denied, prompting this appeal. 
We affirm. Initially, we reject defendant's assertion that Supreme Court erred in failing to discharge a sworn juror. "If at any time after the trial jury has been sworn and before the rendition of its verdict, ... the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, ... the court must discharge such juror" (CPL 270.35 ; see People v Buford, 69 N.Y.2d 290, 298 ; People v Lapage, 57 A.D.3d 1233, 1235 ). A juror will be deemed to be grossly unqualified to serve only when, after "conduct[ing] a probing, tactful inquiry into the specific circumstances" (People v Cecunjanin, 67 A.D.3d 1072, 1076 , mod on other grounds 16 N.Y.3d 488  [internal quotation marks and citation omitted]),  "it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict" (People v Buford, 69 N.Y.2d at 298 [internal quotation marks and citation omitted]; see People v Brock, 107 A.D.3d 1025, 1028 , lv denied ___ N.Y.3d ___ [Sept. 18, 2013]; People v Wright, 13 A.D.3d 736, 739 , lv denied 4 N.Y.3d 837 ). We conclude — based upon our review of the record — that no such showing was made here.
Trial counsel initially asserted that juror No. 2 was glaring at her, prompting a concern that this juror already had formed an opinion as to defendant's guilt. Supreme Court questioned the first six sworn jurors, in response to which juror No. 2 indicated that he could follow the court's instructions regarding, among other things, the presumption of innocence and keeping an open mind. Following this inquiry, defense counsel voiced no objection to juror No. 2's continued service and, in any event, "a sworn juror should not be discharged merely because [he or] she is irritated with one of the attorneys" (People v Buford, 69 N.Y.2d at 298-299).
The following day, Supreme Court received a note from juror No. 2 indicating that he "may have seen someone [he] went to school with in the spectator area that may be a relative (possibly the father) of the victim." In response to Supreme Court's inquiry, juror No. 2 indicated that he had not seen the individual in question since he graduated from high school more than 30 years ago and reiterated that he could "still be fair." Although defense counsel asked that juror No. 2 be excused, "the juror's fleeting contact with [this individual] years earlier did not constitute such a close relationship of a business or personal nature as to render the juror grossly unqualified to continue serving in the case" (People v Henderson, 74 A.D.3d 1567, 1571 , mod 77 A.D.3d 1168  [internal quotation marks and citation omitted]; see People v Wright, 13 A.D.3d at 739; People v Cook, 275 A.D.2d 1020, 1021 , lv denied 95 N.Y.2d 933 ).
Finally, although juror No. 2 acted unwisely in beginning to read one of two articles appearing in a local newspaper,  he nonetheless assured Supreme Court that he had not formed any opinions about the case and that he could remain impartial. Under these circumstances, we do not find that juror No. 2 was grossly unqualified to serve or otherwise engaged in substantial misconduct (see People v Jimenez, 101 A.D.3d 513, 514 , lv denied 20 N.Y.3d 1100 ; People v Mason, 299 A.D.2d 724, 724-725 , lv denied 100 N.Y.2d 564 ).
Nor are we persuaded that Supreme Court abused its discretion in refusing to allow defendant to introduce evidence of the victim's prior traffic infractions and accidents, which, defendant contends, would have provided the jury with an alternative explanation for the accident, to wit, that it was the victim, not defendant, who was driving the Mitsubishi at the time of the accident. The flaw in defendant's argument on this point is that the victim's allegedly poor driving history simply is not probative of whether she was a passenger in or the driver of the Mitsubishi on the night in question (see People v Carkner, 213 A.D.2d 735, 739 , lv denied 85 N.Y.2d 970 ; cf. People v Scott, 93 A.D.3d 1193, 1195 , lv denied 19 N.Y.3d 967 ; People v Clarkson, 78 A.D.3d 1573, 1573-1574 , lv denied 16 N.Y.3d 829 ), no more so than defendant's driving history — which included two prior convictions for driving while intoxicated and six prior convictions for aggravated unlicensed operation of a motor vehicle — would be probative of whether he was a passenger in or the operator of the vehicle.
Defendant next asserts that the verdict is not supported by legally sufficient evidence and, further, is against the weight of the evidence — specifically, that there is insufficient evidence to place him behind the wheel of the car at the time of the accident  and/or demonstrate that he recklessly caused the ...