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COA rejects appeal based on sleepy juror

ALBANY — One sleepy juror didn’t deprive a convicted murderer of his constitutional right to a jury of 12, New York’s highest court ruled Tuesday.

The trial judge did enough questioning when told a juror was sleeping during deliberations, the Court of Appeals unanimously concluded. Carlos Herring was convicted of murder, assault and weapon possession for fatally shooting one man and wounding another in 2006 outside a Rockland County nightclub.

“While there are circumstances where a juror’s behavior during deliberations renders that juror grossly unqualified, in this situation the trial judge did not abuse her discretion when she decided that Juror 11 was fit to serve on the jury,” the seven-member court wrote.

Herring, 32, is serving 31 years to life in prison. Acquitted at trial of a menacing charge, he claimed his actions were justified in the early morning altercation.

The top court unanimously rejected attorney Diane Selker’s argument that Herring deserves a new trial because one juror told Judge Catherine Bartlett that another was sleeping through deliberations. That juror denied it when questioned by the judge, who also asked if she was ill or unable to fulfill her duties, and who let her stay.