        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1205
KA 12-01045
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY F. ARMSTRONG, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered January 12, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree and
intimidating a victim or witness in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of assault in the second degree (Penal Law § 120.05 [2])
and intimidating a victim or witness in the third degree (§ 215.15
[1]), defendant contends that County Court erred in failing to
discharge a juror who appeared to be asleep during a portion of the
trial. Defendant failed to move to discharge that juror, and thus his
contention is not preserved for our review (see People v Phillips, 34
AD3d 1231, 1231, lv denied 8 NY3d 848). Indeed, after bringing the
matter to the court’s attention, defense counsel stated that he did
not “want to say anything right now,” and the court stated that it
would continue to observe the juror. We thus conclude that “defendant
‘should not now be heard to complain’ of the court’s failure to
discharge the juror” (id.).

     Defendant failed to preserve for our review his contentions that
the court failed to comply with CPL 300.10 (4) by proceeding with
summations before holding its charge conference (see People v Lugo, 87
AD3d 1403, 1404, lv denied 18 NY3d 860), and that the indictment was
either duplicitous on its face or rendered duplicitous by the
testimony at trial (see People v Allen, 24 NY3d 441, 449-450). We
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).
                                 -2-                          1205
                                                         KA 12-01045

Finally, we conclude that the sentence is not unduly harsh or severe.




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
