People v. Diaz

196 A.D.2d 790, 602 N.Y.S.2d 106, 1993 N.Y. App. Div. LEXIS 8852

Opinion

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered July 13, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the first degree and two counts of criminal sale of a controlled substance in the second degree, and sentencing him, as a second felony offender, to terms of 15 years to life, 6 years to life, and 6 years to life, and resentencing him under Indictments Nos. 452 and 4905 to an indeterminate term of 2 to 6 years and definite term of 6 months for a violation of probation, all terms to run concurrently, unanimously affirmed.

Defendant argues that three sworn jurors, all of whom, as non smokers, expressed some anxiety concerning a dispute between the jurors over smoking in the jury room, should have been discharged. The dispute occurred during the presentation of the People’s case on a Friday afternoon; the case was submitted to the jury the following Tuesday. Smoking rules were established, and there was no further complaint from any juror on the subject. At no time did any of the three jurors express an inability either to deliberate with the remaining jurors or to reach an impartial verdict. The responses given by the remaining jurors that the matter was resolved indicate that any concern expressed by the three jurors in this regard was unfounded. The questioning of all of the jurors sufficiently established that discharge was unwarranted, and it was not necessary to obtain "unequivocal assurances” that the jurors could deliberate impartially (compare, People v Rodriguez, 71 NY2d 214).

We find no error in requiring defendant to give a voice exemplar in his native tongue for the jury to compare to the voice on the tapes that were recorded as part of the undercover operation. The refusal or inability of defendant to read from the transcripts justified the direction that he repeat the words whispered to him by the official court interpreter. Concur—Sullivan, J. P., Carro, Kupferman and Nardelli, JJ.