People v. Velez ( 1998 )

—Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered April 7, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 44/2 to 9 years, unanimously affirmed.

The verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490). We see no reason to disturb the jury’s determinations concerning credibility and reliability of identification testimony.

By failing to advance any of the arguments he raises on appeal, defendant failed to preserve his claim regarding the removal of an unsworn selected juror and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court properly exercised its discretion in excusing the juror on the basis of a scheduling conflict. The power to excuse an unsworn juror is much broader than the statutorily limited power to discharge a sworn juror, and we find no support in the statute (CPL 270.35) for treating a selected, but unsworn juror as a sworn juror. Concur — Milonas, J. P., Ellerin, Rubin, Tom and Saxe, JJ.