Opinion
May 5, 1992
Appeal from the Supreme Court, Bronx County (Beverly S. Cohen, J.).
By failing to return for the trial after a weekend recess of his Sandoval hearing, defendant forfeited his right to be present at trial regardless of whether he knew that the trial would continue in his absence (People v. Sanchez, 65 N.Y.2d 436, 443-444; People v. Smith, 66 N.Y.2d 755). Defendant has failed to demonstrate that the trial court neglected to inform him of the consequences of his failure to appear for trial, and there is no reason to disturb the trial court's conclusion that defendant's absence was voluntary and knowing.
For the reason that counsel did not affirmatively challenge the trial court's dismissal of a sworn juror for non-residency in Bronx County on the grounds now asserted on appeal, at a time when the court could have corrected the claimed error, the claim is not preserved for review as a matter of law (People v. Hopkins, 76 N.Y.2d 872). Nor are defendant's constitutional claims preserved as a matter of law (People v Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914). In any event, were we to review in the interest of justice, we would note the juror's testimony that he lived with his sister in Manhattan, and, despite ongoing contacts with the Bronx, would find that the juror was properly dismissed because not a resident of Bronx County. In order to qualify as a juror, a person must be a resident of the county (Judiciary Law § 510), a requirement that goes to the substance of a juror's function and competence to serve (People v. Foster, 64 N.Y.2d 1144, 1146, cert denied 474 U.S. 857). Since this juror was not discharged as being grossly unqualified because of impropriety or bias, the more stringent requirements of People v. Page ( 72 N.Y.2d 69) do not apply.
Defendant's claim that certain comments made by the prosecutor during summation deprived him of a fair trial was not preserved by an objection specifying the grounds raised on appeal and, in view of the overwhelming evidence of guilt, we decline to review in the interests of justice (People v. Alexander, 153 A.D.2d 507, 509, affd 75 N.Y.2d 979).
Concur — Milonas, J.P., Kupferman, Ross, Asch and Rubin, JJ.