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New York�A man convicted of killing an undercover police officer should not receive a new trial, even if a judge was asleep at times while the jury was being selected, a state appeals court has ruled. In a unanimous opinion, the Appellate Division, 1st Department, said that since David Degondea and his attorney failed to object to the judge’s alleged behavior at the time, they could not use it to attack the jury’s verdict years later. The court also questioned whether the now-deceased trial judge, Supreme Court Justice James Leff, had actually fallen asleep during jury selection or simply appeared “sluggish.” Two years ago, Supreme Court Justice Marcy Kahn ruled in this case that Leff’s “inattention” had caused him to deny a for-cause challenge to a possibly prejudicial juror. The defense subsequently exhausted its peremptory challenges and later claimed it had been prejudiced. “There is no question that it is utterly unacceptable for a judge to sleep while presiding over a trial,” wrote Justice David Friedman for the Appellate Division in People v. Degondea, No. 579. “Here, however, the question is whether defendant may consciously acquiesce in such conduct, and then seek, years later, to collaterally attack his conviction on that very basis. We conclude that defendant’s silence and delay preclude the attack he now makes. Moreover, we find that defendant has not proven his claim by a preponderance of the evidence.” A 1993 drug raid Degondea was convicted of killing an undercover police officer during a 1993 drug raid at Degondea’s New York T-shirt shop. He admitted at trial that he was a drug dealer, but claimed he fired shots at the officers in self-defense, thinking they were drug dealers trying to rob him. He was sentenced to 55 years to life in prison, and his conviction was affirmed on appeal. After the New York Court of Appeals, the state’s high court, denied him leave, Degondea challenged his conviction pursuant to Criminal Procedure Law 440.10, arguing that Leff’s periodic somnolence-which was not mentioned in the trial transcripts-had prejudiced Degondea. The judge, Degondea argued, did not grant a for-cause challenge of a prejudiced juror because he did not hear the juror’s response to a question. At a reconstruction hearing before Kahn, Degondea’s attorney and an attorney for a co-defendant testified that Leff appeared to be sleeping through portions of voir dire. Kahn agreed that Leff had been inattentive and ordered a new trial, much to the dismay of police officers who had filled her courtroom in protest during the hearing.

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