People v. Felton , 718 N.Y.S.2d 843 ( 2001 )

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered August 30, 1997, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him to a term of 21/s to 7 years, unanimously affirmed.

Defendant’s claim that the trial court failed to conduct an adequate inquiry to determine whether his consent to the substitution of an alternate juror during deliberations was knowing and voluntary is a claim requiring preservation (People v Johnson, 51 NY2d 986), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that a knowing and voluntary waiver may be inferred from the fact that the court ascertained that defendant conferred with his counsel prior to signing a written consent in open court in conformance with CPL 270.35 (1). The assertion that defendant’s “participation in the waiver was not knowing and voluntary implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10” (People v Johnson, supra, at 988).

We perceive no basis for reduction of sentence. The court properly exercised its discretion in denying defendant’s request for youthful offender status. Concur — Nardelli, J. P., Williams, Tom, Wallach and Friedman, JJ.