
    [745 NE2d 384, 722 NYS2d 465]
    The People of the State of New York, Respondent, v Philip Malachi Artist, Appellant.
    Argued November 15, 2000;
    decided December 14, 2000
    APPEARANCES OF COUNSEL
    
      Office of the Appellate Defender, New York City (Joseph M. Nursey and Richard M. Greenberg of counsel), for appellant.
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Deborah L. Morse, Mark Dwyer and Susan Gliner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The record demonstrates that defendant’s argument, that he was denied his right to a jury trial and due process as a result of the substitution of the Trial Judge during jury deliberations, is unpreserved (see, People v Tonge, 93 NY2d 838, 839-840; People v Thompson, 90 NY2d 615, 621). Defendant’s argument that the substitute Judge failed to exercise her discretion in ruling that the jury could not be released from sequestration is similarly unpreserved (see, People v Shaw, 90 NY2d 879, 880).

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Order affirmed in a memorandum.  