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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 selected, a New York appeals court ruled Tuesday. In a unanimous opinion, the New York 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, state Supreme Court Justice James Leff, had actually fallen asleep during jury selection or simply appeared “sluggish.” Two years ago, New York 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 court in People v. Degondea. “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.” Degondea was convicted of killing an undercover police officer during a 1993 drug raid at Degondea’s East Village 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 Court of Appeals 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. She said the judge should have questioned further a juror who seemed to express prejudice about drugs. In reversing that ruling, the 1st Department said it would substitute its own discretion for Kahn’s and deny the 440.40 motion because the defendant “unjustifiably failed to use due diligence to cause the matter of the trial judge’s somnolence or inattention” to appear on the record. Kahn had concluded that Degondea’s attorney, Melvin Sachs, should not be penalized for failing to address the judge’s sleepiness because he was afraid of antagonizing “an already impatient judge.” “We conclude that judicial somnolence or inattention does not rise to the level of a ‘mode of proceedings’ error, and that such a claim may be waived by the defendant’s failure at trial, with knowledge of the relevant facts, either to place such facts on the record, or to preserve the claim by appropriate objection,” Friedman wrote. The judge added: “More fundamentally, we do not believe that a claim of judicial inattention, based solely on the judge’s appearance, demeanor and errors in his or her stated recollection of prior proceedings, can give rise to a claim of constructive judicial absence requiring vacatur of the judgment. Judges, like all human beings, are prone to occasional lapses of memory.” Presiding Justice John T. Buckley and Justices Ernst H. Rosenberger, Alfred D. Lerner and Luis A. Gonzalez concurred on the ruling. Claudia S. Trupp of the Center for Appellate Litigation represented Degondea on appeal. Robert S. Dean, the attorney-in-charge of that office, said the center would seek leave to appeal the ruling to the Court of Appeals. Manhattan Assistant District Attorney Morrie I. Kleinbart appeared for the prosecution.

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