People v. Parker

168 A.D.2d 917, 565 N.Y.S.2d 333, 1990 N.Y. App. Div. LEXIS 16444

Opinion

Judgment unanimously affirmed. Memorandum: By consenting to the excusal of a sworn juror during jury selection, defendant failed to preserve any issue for review concerning the removal of the juror (CPL 470.05 [2]). In our view, defendant’s interests were adequately protected by the presence of defendant’s counsel at the bench conference concerning the removal of the sworn juror (see, People v Darby, 75 NY2d 449). The testimony of the victim’s neighbor concerning her observation of defendant in the victim’s yard four days prior to the attack on the victim was probative on the issue of identity (see, People v Alvino, 71 NY2d 233, 241-242). Finally, defendant failed to preserve for review his argument that the court’s instruction on reasonable doubt was erroneous (see, People v Thomas, 50 NY2d 467, 471), and we decline to reach the issue in the interest of justice. (Appeal from judgment of Monroe County Court, Marks, J.—rape, first degree.) Present—Dillon, P. J., Doerr, Green, Pine and Davis, JJ.