Opinion
April 9, 1998
Appeal from the Supreme Court, Bronx County (Elbert Hinkson, J., at jury trial; Denis Boyle, J., at sentencing).
Defendant's claim that the court should have instructed the jury concerning the element of operability in its charge on criminal possession of a weapon is one requiring preservation ( People v. Henry, 236 A.D.2d 888, lv denied 90 N.Y.2d 859), which defendant failed to do, and we decline to review this claim in the interest of justice. Were we to review this claim, we would find that the court's failure to deliver such instruction was error ( People v. Hechavarria, 158 A.D.2d 423), but that such error was harmless in light of the overwhelming evidence of operability and absence of any contested issue concerning that element ( People v. Tadic, 140 A.D.2d 651, lv denied 72 N.Y.2d 925). Defendant's remaining contentions are unpreserved and without merit.
Concur — Rosenberger, J.P., Nardelli, Wallach, Rubin and Mazzarelli, JJ.