Defendant both failed to preserve, and waived, his argument that the court deprived him of his constitutional right to a jury trial by failing to conduct a probing and tactful inquiry to determine whether a juror had been sleeping during the trial. When the court noticed that a juror had her eyes closed during its final charge, defendant failed to move for a mistrial or request the court to further examine the juror (CPL 470.05; People v Jones, 173 A.D.2d 359, lv denied 78 N.Y.2d 1077). After the jury commenced its deliberations, defense counsel indicated that at some later point, he might seek to excuse the juror if something were to happen. Before the jury reached its verdict, defense counsel affirmatively waived defendant's right to seek to excuse the juror. Under these circumstances, the court correctly denied defendant's CPL article 330 motion to vacate the judgment or, in the alternative, for a hearing to determine whether the juror was grossly unqualified.
Concur — Carro, J.P., Milonas, Ellerin, Wallach and Kupferman, JJ.