Opinion
March 3, 1997.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Orgera, J.), rendered August 9, 1995, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Before: O'Brien, J.P., Thompson, Joy and Florio, JJ.
Ordered that the judgment is affirmed.
The Supreme Court properly denied the defendant's motion to set aside the verdict on the ground of juror misconduct. Absent a showing of prejudice to a substantial right, proof of juror misconduct does not entitle a defendant to a new trial ( see, People v Irizarry, 83 NY2d 557, 561; People v Clark, 81 NY2d 913, 914). Here, although a juror failed to disclose during voir dire that her husband had been accused of a crime, the record establishes that this did not preclude her from rendering an impartial verdict. Accordingly, the defendant was not prejudiced by the juror's misconduct.
We also find that a missing witness charge was unnecessary under the circumstances ( see, People v Macana, 84 NY2d 173; People v Doros, 217 AD2d 415), and that the trial court's identification charge was proper ( see, People v Knight, 87 NY2d 873; People v Whalen, 59 NY2d 273).
The defendant's remaining contention is without merit.