Opinion
2006-11193
11-12-2014
The PEOPLE, etc., respondent, v. Khadim GUEYE, appellant.
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Daniel Bresnahan of counsel), for respondent.
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Daniel Bresnahan of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered October 23, 2006, convicting him of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court improperly discharged a sworn juror and replaced him with an alternate. The defendant failed to preserve for appellate review his contention that the Supreme Court did not make a “reasonably thorough inquiry” (CPL 270.35[2][a] ) into the unavailability of the juror, because he did not object to the sufficiency of the court's inquiry or request that any further inquiry be made (see People v. King, 110 A.D.3d 1005, 1006, 973 N.Y.S.2d 353, lv. granted 23 N.Y.3d 1022, 992 N.Y.S.2d 804, 16 N.E.3d 1284 ; People v. Morales, 87 A.D.3d 1165, 1166, 930 N.Y.S.2d 454 ; People v. Settles, 28 A.D.3d 591, 591, 813 N.Y.S.2d 501 ). In any event, contrary to the defendant's contention, the Supreme Court conducted a reasonably thorough inquiry into the juror's unavailability and providently exercised its discretion in replacing the juror after determining that the juror would not appear within the two-hour time period set forth in CPL 270.35(2) (see People v. Jeanty, 94 N.Y.2d 507, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ). The defendant's constitutional claim on this matter is also unpreserved for appellate review (see People v. Ballard, 51 A.D.3d 1034, 1035–1036, 858 N.Y.S.2d 769 ; People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333 ) and, in any event, without merit (see People v. Jeanty, 94 N.Y.2d at 517, 706 N.Y.S.2d 683, 727 N.E.2d 1237 ; People v. Ballard, 51 A.D.3d at 1036, 858 N.Y.S.2d 769 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).