Lawyer Stan Levenson was seen sleeping by the judge, witnesses and the jurors who convicted James Nassida last year.

He blamed the nap on his drowsy cold medication, the New York Post reports.

But instead of ordering a mistrial, U.S. District Judge Donetta Ambrose chose to wait for the jury’s verdict and to allow Mr Nassida to file an appeal if convicted.

After being found guilty, Mr Nassida’s new lawyer, James Brink, filed an appeal. The new trial is now scheduled to begin in September.