We find no impermissible suggestiveness in the fact that defendant's photo was the only one in the array with a height chart rather than a white background, a difference that could not have directed the identifying witness to defendant (see, Matter of Christopher E., 163 A.D.2d 385, lv denied 76 N.Y.2d 712), since the witness had recognized, described and identified defendant by his street name. Nor do we find any infirmity in the lineup identification arising out of a purported difference in skin tones between defendant and all the fillers, since skin tone was not a feature the witnesses had used to describe the perpetrator (cf., People v. Owens, 74 N.Y.2d 677), and, when considered with other descriptive features shared by defendant and the fillers, did not in any event create a substantial likelihood that defendant would be singled out for identification (People v Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833).

Although defendant was excluded from certain robing room discussions with prospective jurors during the voir dire. this case preceded the ruling in People v. Antommarchi ( 80 N.Y.2d 247), which is not retroactively applied (People v. Mitchell, 80 N.Y.2d 519), and thus, despite defendant's objection, his exclusion is not reversible error (People v. Brown, 202 A.D.2d 266). We note the preliminary robing room discussions were followed by formal challenges in open court (People v. Velasco, 77 N.Y.2d 469, 473), during which defendant was present and could participate (compare, People v. Sabater, 195 A.D.2d 417), and that the subject venirepersons were not in any event selected (People v. Brown, supra).

The court erred in conducting an ex parte examination of a prosecution witness to determine whether he had been intimidated. Although such an inquiry should not be foreclosed when it does not bear on the witness' credibility or otherwise on the fullness of the defendant's opportunity to defend (see, People v. Lovett, 192 A.D.2d 326, lv denied 82 N.Y.2d 722), that was not the case here. However, since the witness in question was an identification witness who did not in fact identify defendant in court, the error does not warrant reversal.

The court correctly decided not to submit manslaughter in the second degree as a lesser included offense of depraved indifference murder (CPL 300.50), defendant's conduct having clearly posed a grave risk of death (see, People v. Roe, 74 N.Y.2d 20), and there being no evidence that could reasonably support a finding that defendant acted recklessly rather than wantonly.

At the close of the first day of the jury's deliberations, the court officer directed the jurors to cease deliberations, after which they retired to a hotel. The record contains the cryptic notation that the court officer "delivered to the jury the admonition of the court in standard fashion", without any further elaboration. Neither defendant nor counsel were present when the "admonitions" were given or when the notation was recorded. The questions presented for review are whether the court improperly delegated to a court officer the duty to provide sequestration instructions to the jury, and whether a material stage was thereby conducted out of defendant's presence. If the court officer had merely directed the jury to cease deliberations (People v. Bonaparte, 78 N.Y.2d 26), or even directed the jury to follow all of the court's prior instructions without added legal gloss of his or her own (People v. Smith, 181 A.D.2d 844, lv denied 81 N.Y.2d 1080), such would not have been a departure from the court officer's exercise of his or her standard ministerial duties. However, if the court officer embellished such an unadorned directive with additional instructions containing legal content, such would not only have usurped the court's statutory and exclusive duty to instruct the jury, but also would have constituted a material stage of proceedings conducted in defendant's absence (People v. Torres, 72 N.Y.2d 1007), requiring a new trial. Since the issue evades harmless error analysis (supra), and the spare record of the claim is ambiguous, we remand the question for a reconstruction hearing and hold the appeal in abeyance.

To the extent that defendant challenges the court's failure to provide sequestration instructions, the issue is not preserved for review (People v. Bonaparte, supra).

We have examined defendant's remaining claims and find that they do not warrant corrective action.

Concur — Rosenberger, J.P., Ellerin, Ross, Rubin and Nardelli, JJ.