People v. Pain

Appellate Division of the Supreme Court of New York

People v. Pain

298 A.D.2d 604, 748 N.Y.S.2d 691, 2002 N.Y. App. Div. LEXIS 10253

Appellate Division of the Supreme Court of the State of New York·Decided October 28, 2002·Published·Cited by 7 cases

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Knipel, J.), rendered June 15, 2000, convicting him of burglary in the first degree, burglary in the third degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that the trial court did not conduct a sufficient inquiry of four allegedly unqualified jurors is unpreserved for appellate review. The defendant did not request such an inquiry, and his two motions for a mistrial failed to [605] specify that any of the jurors was “grossly unqualified to serve” (CPL 270.35 [1]; see CPL 470.05 [2]; People v Rodriguez, 71 NY2d 214, 218; People v Bunch, 278 AD2d 501, 502; People v Beniquez, 267 AD2d 316; People v Jackson, 209 AD2d 247, 247-248). In any event, it is clear from the record that at no time did any of the four jurors, including juror number three, express an inability to render an impartial verdict or to deliberate. Therefore, a mistrial and a consequent dismissal were not warranted (cf. People v Jones, 287 AD2d 339; People v Sipas, 246 AD2d 408; People v Huntley, 237 AD2d 533).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83). S. Miller, J.P., Krausman, Goldstein and Rivera, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Knipel, J.), rendered June 15, 2000, convicting him of burglary in the first degree, burglary in the third degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that the trial court did not conduct a sufficient inquiry of four allegedly unqualified jurors is unpreserved for appellate review. The defendant did not request such an inquiry, and his two motions for a mistrial failed to [605] specify that any of the jurors was “grossly unqualified to serve” (CPL 270.35 [1]; see CPL 470.05 [2]; People v Rodriguez, 71 NY2d 214, 218; People v Bunch, 278 AD2d 501, 502; People v Beniquez, 267 AD2d 316; People v Jackson, 209 AD2d 247, 247-248). In any event, it is clear from the record that at no time did any of the four jurors, including juror number three, express an inability to render an impartial verdict or to deliberate. Therefore, a mistrial and a consequent dismissal were not warranted (cf. People v Jones, 287 AD2d 339; People v Sipas, 246 AD2d 408; People v Huntley, 237 AD2d 533).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83). S. Miller, J.P., Krausman, Goldstein and Rivera, JJ., concur.

People v. Pain, 298 A.D.2d 604, 748 N.Y.S.2d 691, 2002 N.Y. App. Div. LEXIS 10253 (N.Y. Ct. App. 2002).

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