Opinion
April 25, 1994
Appeal from the Supreme Court, Kings County (Miller, J.).
Ordered that the judgment is affirmed.
The defendant contends for the first time on appeal that he was deprived of a fair trial because the trial court failed to conduct an inquiry of an apparently sleeping juror. This issue is unpreserved for appellate review (see, CPL 470.05; People v Torres, 80 N.Y.2d 944, 945; People v Jones, 173 A.D.2d 359). 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 should not be heard to complain (see, People v Argibay, 57 A.D.2d 520, 521, affd 45 N.Y.2d 45, cert denied sub nom. Hahn v DiGuiseppe 439 U.S. 930).
In any event, the record does not establish that the juror was sleeping. The court stated that it was a "great jury watcher" and that it "didn't see her sleeping." The prosecutor did not indicate that she saw the juror sleeping, and the defense counsel stated that she did not see the juror sleeping. Thus, the defendant's contention is without merit (see, People v McIntyre, 193 A.D.2d 626; People v Argibay, supra).
The defendant contends that the court committed reversible error when, in its charge on burglary in the second degree, it referred to a person unlawfully entering or remaining in a building with the intent to commit a crime therein. This issue is unpreserved for appellate review (see, CPL 470.05; People v Fernandez, 197 A.D.2d 462; People v Martinez, 173 A.D.2d 333; People v Rivera, 171 A.D.2d 488). In any event, it does not warrant reversal. The prosecutor proceeded upon the single theory that the defendant had unlawfully entered an apartment with the intent to commit a crime therein. The defendant did not present any evidence, nor is there any reasonable view of the evidence, that would lead to the conclusion that the defendant's intent to commit the crime was formed after his unlawful entry (see, People v Martinez, supra; cf., People v Santiago, 158 A.D.2d 996). Therefore, it is unlikely that the jury was misled by the court's charge (see, People v Fernandez, supra; People v Nelson, 176 A.D.2d 1245). Moreover, there is no evidence in the record that the jury was confused by the charge (cf., People v Gaines, 74 N.Y.2d 358).
The defendant contends that the court erred in its charge by failing to instruct the jury that a reasonable doubt could arise from a lack of evidence. The defendant's contention is unpreserved for appellate review (see, CPL 470.05).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Thompson, J.P., Balletta, Pizzuto and Joy, JJ., concur.