Opinion
450
March 12, 2002.
Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered September 28, 1998, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree, and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
Jennifer H. Lin for respondent.
Robert W. Schumacher II for defendant-appellant.
Before: Saxe, J.P., Rosenberger, Ellerin, Wallach, Marlow, JJ.
Defendant's argument that the court lacked authority to discharge a sworn juror as "grossly unqualified" prior to the completion of jury selection is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would adhere to our prior decisions rejecting that argument (see, People v. Marquez, 264 A.D.2d 634,lv denied 94 N.Y.2d 825; People v. O'Kane, 224 A.D.2d 182, lv denied 88 N.Y.2d 939; People v. Green, 216 A.D.2d 170, lv denied 86 N.Y.2d 842).
The court properly exercised its discretion in declining to provide a "stronger" curative instruction to the panel in response to comments displaying a possible racial bias that had been made by a prospective juror who was ultimately excused for cause. The court's inquiry of the panel and its receipt of appropriate assurances from the prospective jurors were sufficient to deal with this incident (see, People v. Davis, 58 N.Y.2d 1102). Further comment by the court would have created the risk of introducing a racial issue where none existed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.