People v. Ferguson

165 A.D.2d 789, 564 N.Y.S.2d 278, 1990 N.Y. App. Div. LEXIS 11458

Opinion

Judgment of the Supreme Court, Bronx County (Cerbone, J.), rendered on March 28, 1988, after a jury trial, convicting defendant of robbery in the first degree and sentencing defendant, as a predicate violent felony offender, to a term of IVi to 15 years, hereby is unanimously affirmed.

There is an insufficient basis upon the record for this court to conclude that the foreperson of the jury was sleeping during the court’s charge. Accordingly, it cannot be said as a matter of law, that the trial court was required, in this instance, to determine whether the juror was "grossly unqualified” to render a verdict (cf., People v Valerio, 141 AD2d 585, , with People v Russell, 112 AD2d 451, 452-453) or that defendant was deprived of his right to be tried by a jury of 12 persons as set forth in article VI, § 18 of the NY Constitution.

We have considered defendant’s argument that the sentence imposed was excessive and reject it. In light of defendant’s prior record as a violent felony offender, the trial court’s imposition of a sentence which in fact was less than the maximum sentence was not an abuse of discretion (People v Farrar, 52 NY2d 302).

Concur — Murphy, P. J., Sullivan, Carro and Milonas, JJ.