There is an insufficient basis upon the record for this court to conclude that the foreperson of the jury was sleeping during the court's charge. Accordingly, it cannot be said as a matter of law, that the trial court was required, in this instance, to determine whether the juror was "grossly unqualified" to render a verdict (cf., People v. Valerio, 141 A.D.2d 585, 586, with People v. Russell, 112 A.D.2d 451, 452-453) or that defendant was deprived of his right to be tried by a jury of 12 persons as set forth in article VI, § 18 of the N.Y. Constitution.
We have considered defendant's argument that the sentence imposed was excessive and reject it. In light of defendant's prior record as a violent felony offender, the trial court's imposition of a sentence which in fact was less than the maximum sentence was not an abuse of discretion (People v. Farrar, 52 N.Y.2d 302).
Concur — Murphy, P.J., Sullivan, Carro and Milonas, JJ.