Opinion
February 22, 1996
Appeal from the Supreme Court, Bronx County (Vincent Vitale, J.).
Defendant did not object to the manner in which the trial court investigated suggestions that a juror had been sleeping during the charge, and thus did not preserve his current claim that the court's inquiry was insufficient ( People v. Albert, 85 N.Y.2d 851). In any event, the trial court conducted appropriate inquiry of the juror to ascertain whether he had been asleep as suggested, and accepted the juror's repeated assurances that he had heard the entire charge. The court noted that its own observations confirmed the juror's assurances. As defense counsel declined the opportunity for further inquiry, there is no basis to conclude that the juror in question should have been discharged as grossly unqualified ( People v. Jones, 213 A.D.2d 250, lv denied 86 N.Y.2d 796).
Contrary to defendant's argument raised for the first time on appeal, his physical presence was not required during the questioning of the juror, in the presence of counsel, to determine whether or not the juror had been asleep. This questioning did not constitute a material stage of the trial as it had nothing to do with the issue of guilt or innocence and thus, had no substantial effect upon the opportunity to defend ( see, People v. Pujols, 194 A.D.2d 505, lv denied 82 N.Y.2d 724).
Contrary to defendant's further claim raised for the first time on appeal, the trial court's question to the juror, whether he could decide the case on the facts and not permit the robing room questioning regarding the suggestion of sleep to interfere with his ability to be fair and impartial, did not transform the inquiry into a material stage of the trial, as the court properly asked the question to assure that the juror did not harbor any opinion regarding the procedure that would require him to be dismissed as grossly unqualified ( see, People v. Buford, 69 N.Y.2d 290, 299). Defendant's additional claim, also raised for the first time on appeal, that defendant might have contributed his own observations of the juror in question, has no basis in the record and dismissal of a sworn juror may not be predicated on a speculative basis ( see, People v. Hilton, 147 A.D.2d 427, 428).
Concur — Milonas, J.P., Wallach, Ross and Mazzarelli, JJ.