Opinion
1999-04480
Argued September 18, 2003.
October 20, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered May 10, 1999, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Melissa S. Horlick and Winston McIntosh of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Jose Anibal Baez of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Initially, the defendant's contention that the court improperly directed a juror who was suffering from a migraine headache to continue deliberating despite her discomfort and that the juror's subsequent assurance that she would "be okay" was insufficient to allow her to continue deliberating, is unpreserved for appellate review ( see CPL 470.05). In any event, the Supreme Court properly questioned her pursuant to CPL 270.35(2), and providently exercised its significant discretion in determining that the juror was able and willing to continue ( see People v. Jeanty, 94 N.Y.2d 507; People v. Page, 72 N.Y.2d 69).
The defendant's remaining contentions are without merit.
ALTMAN, J.P., GOLDSTEIN, ADAMS and MASTRO, JJ., concur.