Opinion
June 18, 1990
Appeal from the Supreme Court, Queens County (Chetta, J.).
Ordered that the judgment is affirmed.
The defendant contends that he was entitled to a jury instruction on the defense of agency because the testimony of an undercover officer raised the issue of whether he was acting merely as the agent of a purchaser. He argues that the court, by failing to so instruct the jury, deprived him of a fair trial. The defendant's claim of error is unpreserved. A reading of the record shows that at no time during the trial did the defendant request any charge on agency. Nor did he object to the charge as given by the court on that ground. It is beyond cavil that where a defendant at the trial fails to request a particular charge and fails to take exception to the charge as given on the ground that the particular charge was not included, then the claim that the defendant would have been entitled to that charge, had he timely sought it, has not been preserved for appellate review (see, People v. Whalen, 59 N.Y.2d 273, 280; People v. Argibay, 45 N.Y.2d 45, 53; People v. Udzinski, 146 A.D.2d 245).
The defendant also contends that he was deprived of his right to a public trial (see, People v. Jones, 47 N.Y.2d 409, cert denied 444 U.S. 946), when the Trial Judge cleared the court-room, allegedly without satisfactory explanation in the record. He claims that this warrants an automatic reversal. We decline to reach the merits of this issue since it also was not properly preserved for appellate review (see, CPL 470.05; People v Scott, 134 A.D.2d 379, 381). It has long been held that a defendant may waive his right to a public trial if an objection is not taken within a reasonable time (see, People v. Miller, 257 N.Y. 54; People v. Scott, supra).
We have examined the defendant's other contention and find it to be without merit (see, People v. Suitte, 90 A.D.2d 80). Mangano, P.J., Thompson, Bracken and Eiber, JJ., concur.