Opinion
276 KA 12–01620
03-16-2018
The PEOPLE of the State of New York, Respondent, v. Eugene S. BROWN, Also Known as Eugene Nesmith, Defendant–Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ). Defendant failed to preserve for our review his contention that County Court erred in failing to conduct an inquiry into whether jurors were sleeping during the trial (see People v. Lancaster, 143 A.D.3d 1046, 1051, 41 N.Y.S.3d 129 [3d Dept. 2016], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 298, 74 N.E.3d 683 [2017], reconsideration denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ; People v. Quinones, 41 A.D.3d 868, 868, 840 N.Y.S.2d 804 [2d Dept. 2007], lv denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882 [2007] ). We note that defendant asked the court to discharge one juror on the ground that he was "grossly unqualified" ( CPL 270.35[1] ), the court granted his request and discharged the juror, and defendant did not request that the court inquire into the conduct of any other particular juror. Defendant also failed to preserve for our review his challenges to the court's Sandoval ruling (see People v. Huitt, 149 A.D.3d 1481, 1482, 52 N.Y.S.3d 597 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ), and its Molineux ruling (see People v. Pendergraph, 150 A.D.3d 1703, 1704, 54 N.Y.S.3d 257 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017] ). We decline to exercise our power to review those unpreserved contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.