People v. Timmons , 604 N.Y.S.2d 99 ( 1993 )

Judgment, Supreme Court, New York County (Joan Carey, J.), rendered April 30, 1991, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 4ti to 9 years and 2V2 to 5 years, respectively, unanimously affirmed.

Since defendant did not proceed "pro se”, but merely "participated” in his defense to the extent of conducting a portion of the cross-examination of one of the People’s witnesses, there was no relinquishment of the right to counsel and thus no need for the court to have inquired of defendant whether he appreciated the risks of self-representation (People v Cabassa, 79 NY2d 722, 730-731, cert denied sub nom. Lind v New York, — US —, 113 S Ct 633).

Defendant’s other contention that the sworn juror was replaced over his objection misconstrues the record as showing that he objected to the disqualification. To the contrary, the record shows that defendant actually sought the disqualification when his motion for a mistrial, based on the juror’s unavailability for continued service, was denied. Concur—Ellerin, J. P., Wallach, Kupferman and Nardelli, JJ.