Opinion
February 10, 1999
Appeal from Judgment of Erie County Court, D'Amico, J. — Rape, 1st Degree.
Present — Green, J. P., Pine, Wisner, Pigott, Jr., and Balio, JJ.
Judgment unanimously affirmed. Memorandum: County Court did not abuse its discretion in denying without a hearing defendant's motion to set aside the verdict based upon alleged juror misconduct ( see, CPL 330.30), where the motion was supported only by a juror's hearsay account of another juror's statements during deliberations ( see, People v. Hentley, 155 A.D.2d 392, 393, lv denied 75 N.Y.2d 919; People v. Morales, 121 A.D.2d 240, 241-242). The court properly denied defendant's request to discharge a sworn juror and replace him with an alternate ( see, CPL 270.35). We reject defendant's contention that reversal is warranted because of improper remarks by the prosecutor during summation ( see, People v. Halm, 81 N.Y.2d 819, 821). Defendant failed to preserve for our review his contention that the court did not comply with the procedures of CPL 400.20 ( see, People v. Proctor, 79 N.Y.2d 992), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). The sentence is neither unduly harsh nor severe.