Opinion
2003-03785.
March 21, 2006.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered April 7, 2003, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence.
Judah Maltz, Kew Gardens, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Before: Ritter, J.P., Luciano, Mastro and Skelos, JJ., concur.
Ordered that the judgment is affirmed.
The defendant's contention that the People failed to prove his identity as a participant in the gang assault and that he acted with the intent to cause serious physical injury by legally sufficient evidence is unpreserved for appellate review ( see CPL 470.05). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to prove the defendant's identity as a participant in the gang assault beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The defendant failed to preserve for appellate review his claim that the court was precluded from granting the prosecution's second motion to discharge a sworn juror by the law of the case doctrine after the court had denied the prosecution's first motion ( see CPL 470.05). In any event, the law of the case doctrine is not applicable to the instant matter. The defendant's claim that he was deprived of his right to be tried by a jury of his choosing because of the court's discharge of a sworn juror after the case had proceeded to trial is without merit. To the extent that the defendant contends that the court improperly determined that a sworn juror was grossly unqualified to serve, we find that, under the circumstances, the court properly discharged the juror pursuant to CPL 270.35 ( see People v. Ahmr, 22 AD3d 593, 595, lv denied 6 NY3d 752).
The defendant's remaining contention is without merit.