People v. Valencia

220 A.D.2d 274, 632 N.Y.S.2d 539, 1995 N.Y. App. Div. LEXIS 10089

Opinion

—Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered December 9, 1993, convicting defendant, after a jury trial, of two counts of grand larceny in the fourth degree and two counts of criminal mischief in the fourth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 2 to 4 years on each larceny conviction and 1 year on each criminal mischief conviction, unanimously affirmed.

The trial court properly discharged a juror as grossly unqualified (CPL 270.35) upon the basis of its own observation that the juror had been sleeping during testimony and the juror’s admission that she had been sleeping and did not know how much testimony she had missed (People v Russell, 112 AD2d 451; see, People v Rodriguez, 71 NY2d 214, 219). Concur— Rosenberger, J. P., Ellerin, Wallach and Tom, JJ.