People v. Ferguson

248 A.D.2d 147, 670 N.Y.S.2d 762, 1998 N.Y. App. Div. LEXIS 1971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered November 2, 1994, convicting defendant, after a jury trial, of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 25 years to life, 12V2 to 25 years, 5 to 15 years and 21/s to 7 years, respectively, unanimously affirmed.

The court provided an adequate response to the note from the deliberating jury and properly refused to dismiss a sworn juror since the record does not support the conclusion that the juror “[was] grossly unqualified to serve in the case” (CPL 270.35 [1]). The juror unequivocally indicated that her ability to remain impartial had not been affected by her overhearing part of a conversation between a spectator and an alternate juror, who was later dismissed.

The prosecutor’s comments on the discrepancies between defendant’s trial testimony and his statements to the police were proper since, under the circumstances, defendant’s omissions from the latter, which were explored on cross-examination, were “unnatural” (People v Savage, 50 NY2d 673, 679, cert denied 449 US 1016).

We perceive no abuse of sentencing discretion.

Concur— Rosenberger, J. P., Ellerin, Wallach and Rubin, JJ.