Opinion
April 3, 1997
Judgment, Supreme Court, New York County (Felice Shea, J., at suppression hearing; Joan Sudolnik, J., at jury trial and sentence), rendered July 11, 1994, convicting defendant of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 7 to 14 years, unanimously affirmed.
The verdict was not against the weight of the evidence ( People v. Bleakley, 69 N.Y.2d 490). Identification and credibility issues were properly placed before the jury and we see no reason to disturb its findings.
The court properly denied defendant's motion to suppress the physical evidence. Probable cause was provided by the complainant's report of the crime and identification of defendant, communicated in part by hand gestures and non-verbal conduct ( see, People v. Youmans, 228 A.D.2d 345).
The court properly granted defendant's request to discharge a deliberating juror, whose competence was in question, and to substitute an alternate. Defendant affirmatively waived any objection by signing a written consent form pursuant to CPL 270.35 ( People v. Page, 88 N.Y.2d 1), and we find that his waiver was knowing, intelligent and voluntary ( see, People v. Johnson, 51 N.Y.2d 986). The record reveals that defendant repeatedly conferred with counsel on this issue and the court questioned defendant personally, eliciting defendant's understanding of the situation ( see, People v. Tamarez, 213 A.D.2d 261, lv denied 85 N.Y.2d 981). On the existing record, we find that defendant received effective assistance of counsel in making this tactical decision.
Defendant has not demonstrated that his trial strategy was impaired by the fact that, during the defense case, the court reconsidered its original Sandoval ruling and substituted a ruling more favorable to defendant, whereupon defendant still chose not to testify.
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Rosenberger, J.P., Rubin, Williams and Andrias, JJ.