Opinion
15896, 5102/11.
10-15-2015
The PEOPLE of the State of New York, Respondent, v. Reginald WIGGINS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, SAXE, MOSKOWITZ, GISCHE, JJ.
Opinion Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered on June 12, 2013, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a prison term of 4 ½ years, unanimously affirmed.
Defendant's claim that the court should have inquired into a juror's fitness to continue serving is unpreserved because defendant, who requested other remedies, failed to join in his codefendant's request for an inquiry (see People v. Buckley, 75 N.Y.2d 843, 552 N.Y.S.2d 912, 552 N.E.2d 160 [1990] ), and we decline to review it in the interest of justice. As an alternative holding, we find that the court properly determined, based on its own observations, that no inquiry was necessary (see People v. Maldonado, 279 A.D.2d 406, 719 N.Y.S.2d 564 [1st Dept.2001], lv. denied 96 N.Y.2d 802, 726 N.Y.S.2d 380, 750 N.E.2d 82 [2001] ; see also People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ). The juror's brief outburst telling the codefendant's counsel not to use a racial epithet “again” during cross-examination demonstrated that she was bothered by the repeated use, at least four times, of the phrase, rather than by counsel's initial line of questioning, in which he was eliciting the relevant language used in a conversation. In any event, a juror's mere annoyance with a question or with counsel would not be a basis for discharge (Buford, 69 N.Y.2d at 298–299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ). Accordingly, the court's instructions to all of the jurors to refrain from speaking from the jury box, to refrain from holding any questions they did not like against any of the parties, and to alert the court if they believed they could not be fair and impartial, sufficed under these circumstances (see People v. Mejias, 21 N.Y.3d 73, 80, 966 N.Y.S.2d 764, 989 N.E.2d 26 [2013] ; People v. Marshall, 106 A.D.3d 1, 10, 961 N.Y.S.2d 447 [1st Dept.2013], lv. denied 21 N.Y.3d 1006, 971 N.Y.S.2d 258, 993 N.E.2d 1280 [2013] ).
Defendant's similarly unpreserved contention that the juror's outburst warranted an inquiry because she might have been inclined to usurp the court's role and disregard any later instructions is speculative, and further belied by the record, as the juror refrained from making any further comments from the jury box after the court told her not to do so.