People v. Pressley

200 A.D.3d 1716

155 N.Y.S.3d 907 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Brian J. PRESSLEY, Defendant-Appellant.

1018

KA 16-02270

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 23, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [1] [b] ; [3]) and resisting arrest (§ 205.30). Contrary to defendant's contention, we conclude that Supreme Court did not err in discharging a juror over his objection. The trial court is generally "accorded latitude in making the findings necessary to determine whether a juror is grossly unqualified under CPL 270.35" ( People v. Rodriguez , 71 N.Y.2d 214, 219, 524 N.Y.S.2d 422, 519 N.E.2d 333 [1988] ), and " ‘[a] determination whether a juror is ... grossly unqualified, and subsequently to discharge such a juror, is left to the broad discretion of the court’ " ( People v. Jean-Philippe , 101 A.D.3d 1582, 1582, 956 N.Y.S.2d 709 [4th Dept. 2012] ). Here, upon the court's " ‘probing and tactful inquiry’ into the facts of the situation" ( People v. Harris , 99 N.Y.2d 202, 213, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] ), the juror admitted that he failed to appear for jury duty on two consecutive days because he overslept due to his overnight work schedule. Moreover, the juror admitted that he would be concerned about work while performing his duty as a juror. Recognizing that "[t]he decision to disqualify turns on the facts of each particular case, and according deference to the court's evaluation of the juror's answers and demeanor," we perceive no basis to disturb the court's determination ( People v. Abdul-Jaleel , 142 A.D.3d 1296, 1297, 38 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 946, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] [internal quotation marks omitted]; see People v. Daniels , 59 A.D.3d 730, 730-731, 875 N.Y.S.2d 494 [2d Dept. 2009], lv denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ; People v. Cook , 275 A.D.2d 1020, 1021, 713 N.Y.S.2d 586 [4th Dept. 2000], lv denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145 [2000] ).

Defendant's contention that the court erred in denying his request for a missing witness charge with respect to an arresting officer is unpreserved for our review. While defendant indicated during a pretrial hearing and during certain testimony that he was going to request a missing witness charge, no such charge was actually requested (see generally People v. Roseboro , 151 A.D.3d 526, 526, 58 N.Y.S.3d 12 [1st Dept. 2017], lv denied 30 N.Y.3d 983, 67 N.Y.S.3d 585, 89 N.E.3d 1265 [2017] ).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9...