N.Y. Court: No Retrial Warranted Though Judge Slept

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."

Details here from the New York Law Journal.