Opinion
KA 00-01474
May 2, 2003.
Appeal from a judgment of Erie County Court (D'Amico, J.), entered May 24, 2000, convicting defendant after a jury trial of, inter alia, attempted assault in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, BURNS, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of, inter alia, attempted assault in the first degree (Penal Law 110.00, 120.10) and attempted robbery in the first degree (110.00, 160.15 [4]). We reject the contention of defendant that he was denied his right to be "personally present during the trial of an indictment" (CPL 260.20) when County Court conducted an inquiry in chambers, in the presence of defense counsel and the prosecutor but in the absence of defendant, to determine whether a sworn juror should continue serving on the jury ( see People v Harris, 99 N.Y.2d 202, 212; People v. Mullen, 44 N.Y.2d 1, 5-6). Nor did the court err in discharging the juror based upon its observations of the juror sleeping during the trial ( see People v. Rogers, 266 A.D.2d 481, 482, lv denied 94 N.Y.2d 884) and the failure of the juror to answer truthfully questions asked during voir dire ( see People v Robertson, 217 A.D.2d 989, 990, lv denied 86 N.Y.2d 846; see also People v. Payton, 279 A.D.2d 483, lv denied 96 N.Y.2d 833).
Defendant's contention that the evidence is legally insufficient to sustain the conviction of attempted assault in the first degree is not preserved for our review. By presenting evidence after the court denied that part of his motion seeking to dismiss that count, defendant waived "subsequent review of that determination," and defendant did not renew the motion at the conclusion of all the proof ( People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). The verdict is not against the weight of the evidence ( see People v Bleakley, 69 N.Y.2d 490, 495). Contrary to defendant's contention, the photo arrays presented to the eyewitnesses were not unduly suggestive ( see People v. Lee, 96 N.Y.2d 157, 163; People v. Burton, 226 A.D.2d 1073, lv denied 88 N.Y.2d 934). Defendant failed to preserve for our review his contention that the court erred in responding to a juror's question with respect to the charge ( see CPL 470.05; People v Starling, 85 N.Y.2d 509, 516), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe.