juror defense in New York

2014Finally, we reject defendant’s contention that the court erred in failing to conduct a probing inquiry of a juror whom defense counsel reported to the court as appearing to be asleep during the jury charge. “[I]t is well established that [a] juror who has not heard all the evidence is grossly unqualified to render a verdict” (People v Jean-Philippe, 101 AD3d 1582, 1582 [2012] [internal quotation marks omitted]).

2014Finally, we reject defendant’s contention that the court erred in failing to conduct a probing inquiry of a juror whom defense counsel reported to the court as appearing to be asleep during the jury charge. “[I]t is well established that [a] juror who has not heard all the evidence is grossly unqualified to render a verdict” (People v Jean-Philippe, 101 AD3d 1582, 1582 [2012] [internal quotation marks omitted]).

2022By not making a timely objection defendant failed to preserve any challenge to the court's procedure in conducting the juror inquiry ( see People v Parilla , 27 NY3d 400, 405 [2016] ["argument that the trial court failed to engage in a probing and tactful inquiry of the juror is unpreserved."]) and we decline to review it in the interest of justice.

2022By not making a timely objection defendant failed to preserve any challenge to the court's procedure in conducting the juror inquiry ( see People v Parilla , 27 NY3d 400, 405 [2016] ["argument that the trial court failed to engage in a probing and tactful inquiry of the juror is unpreserved."]) and we decline to review it in the interest of justice.

2022Furthermore, the juror did not claim any expertise or convey an expert opinion ( see People v Torres , 189 AD3d 898, 899 [2d Dept 2020]).

2022Given the location, simplicity, and brief duration of the demonstration ( see People v Gomez , 273 AD2d 160 [1st Dept 2000], lv denied 95 NY2d 890 [2000]; People v Cortez , 172 AD2d 766 [2d Dept 1991], affd 80 NY2d 855 [1992]; People v Horney , 112 AD2d 841 [1st Dept 1985], lv denied 66 NY2d 615 [1985]), as well as the hearing testimony of the jurors who testified that the demonstration had no effect on their deliberations ( see People v Edwards , 188 AD3d 1763, 1764-1765 [4th Dept 2020], lv denied 37 NY3d 955 [2021]; People v Maragh , 94 NY2d at 575 ), the [*2]demonstration did not prejudice

2022Given the location, simplicity, and brief duration of the demonstration ( see People v Gomez , 273 AD2d 160 [1st Dept 2000], lv denied 95 NY2d 890 [2000]; People v Cortez , 172 AD2d 766 [2d Dept 1991], affd 80 NY2d 855 [1992]; People v Horney , 112 AD2d 841 [1st Dept 1985], lv denied 66 NY2d 615 [1985]), as well as the hearing testimony of the jurors who testified that the demonstration had no effect on their deliberations ( see People v Edwards , 188 AD3d 1763, 1764-1765 [4th Dept 2020], lv denied 37 NY3d 955 [2021]; People v Maragh , 94 NY2d at 575 ), the [*2]demonstration did not prejudice

2020Instead, like this case, in People v Alvarado ( 306 AD2d 18 ), the defendant failed to make a step three Batson argument to preserve the juror challenge for appellate review.

2020The court in Alvarado noted that unelaborated "exceptions" on the record fail to preserve Batson issues for appellate consideration ( see id. at 18), as here.

2016Indeed, while the trial court did not sufficiently probe the juror’s emotional conflict, it is clear that, although the juror tried to separate her emotions for three days of deliberations, she felt compelled to advise the court that she was unable “to separate her emotions from the case” and could not do the job she took an oath to do without “giving up [her] conscience.” Nor did the juror here claim an ability to render an impartial verdict or state that she “could separate her own emotions and experience from the facts and the evidence in this case” (cf. People v Dacus, 215 AD2d 578, 579 [2

2016Indeed, while the trial court did not sufficiently probe the juror's emotional conflict, it is clear that, although the juror tried to separate her emotions for three days of deliberations, she felt compelled to advise the court that she was unable "to separate her emotions from the case" and could not do the job she took an oath to do without "giving up [her] conscience." Nor did the juror here claim an ability to render an impartial verdict or state that she "could separate her own emotions and experience from the facts and the evidence in this case" ( cf. People v Dacus , 215 AD2d 578, 579

2015As this Court has repeatedly held, “a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” (People v Kinchen, 60 NY2d 772, 773 [1983]; see People v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985] [violation of right to counsel constitutes “mode of proceedings error” and does not require preservation]).

2015As this Court has repeatedly held, "a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved" (People v Kinchen, 60 NY2d 772, 773 [1983]; see People v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985] [violation of right to counsel constitutes “mode of proceedings error” and does not require preservation]).

2015As this Court has repeatedly held, “a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” (People v Kinchen, 60 NY2d 772, 773 [1983]; see People v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985] [violation of right to counsel constitutes “mode of proceedings error” and does not require preservation]).

2015As this Court has repeatedly held, "a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved" (People v Kinchen, 60 NY2d 772, 773 [1983]; see People v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985] [violation of right to counsel constitutes “mode of proceedings error” and does not require preservation]).

2015As this Court has repeatedly held, “a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” (People v Kinchen, 60 NY2d 772, 773 [1983]; see People v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985] [violation of right to counsel constitutes “mode of proceedings error” and does not require preservation]).

2015As this Court has repeatedly held, "a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved" (People v Kinchen, 60 NY2d 772, 773 [1983]; see People v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985] [violation of right to counsel constitutes “mode of proceedings error” and does not require preservation]).

2009In our view, there was neither a “mode of proceedings” error nor a preserved claim of error in light of the facts that the court ultimately provided defense counsel with a timely and meaningful opportunity to participate in formulating a response to the inquiry, and that defense counsel did not avail himself of the opportunity (see People v Starling, 85 NY2d 509, 516 [1995]; see also People v Williams, 38 AD3d 429, 431 [2007]; cf. People v Cassell, 62 AD3d 1021 [2d Dept 2009]).

2009In our view, there was neither a “mode of proceedings” error nor a preserved claim of error in light of the facts that the court ultimately provided defense counsel with a timely and meaningful opportunity to participate in formulating a response to the inquiry, and that defense counsel did not avail himself of the opportunity (see People v Starling, 85 NY2d 509, 516 [1995]; see also People v Williams, 38 AD3d 429, 431 [2007]; cf. People v Cassell, 62 AD3d 1021 [2d Dept 2009]).

2009Given that there was no indication of any relationship between the prosecutor and the juror for such an extended period of time since the representation had ended, we cannot say, as a matter of law, that the failure to disqualify the juror was error (see People v Provenzano, 50 NY2d 420, 424-425 [1980]; People v Williams, 243 AD2d 833, 837 [1997], lv denied 91 NY2d 931 [1998]).

2009Given that there was no indication of any relationship between the prosecutor and the juror for such an extended period of time since the representation had ended, we cannot say, as a matter of law, that the failure to disqualify the juror was error (see People v Provenzano, 50 NY2d 420, 424-425 [1980]; People v Williams, 243 AD2d 833, 837 [1997], lv denied 91 NY2d 931 [1998]).