Opinion
May 16, 1996
Appeal from the Supreme Court, Bronx County (Lawrence Tonetti, J.).
Immediately prior to the commencement of jury deliberations, a juror asked the trial court "are we able to ask questions?" The court responded: "Questions are over. The trial is done. The evidence is there. What you can ask is if you want a read back. You can't ask any more questions." This was an inaccurate description of the court's obligations to aid the jury in its deliberations (CPL 310.30). However, no objection was registered to this erroneous instruction, and the issue is not preserved for review since the instruction did not constitute a fundamental defect going to the essential validity of the trial such that it was irreparably tainted ( see, People v. Agramonte, 87 N.Y.2d 765) and we decline to review it in the interest of justice. Were we to review it, we would find that defendant was not seriously prejudiced by the instruction ( see, People v. Lourido, 70 N.Y.2d 428, 435; People v. Paul, 204 A.D.2d 205, lv denied 84 N.Y.2d 871).
Summary denial of defendant's suppression motion was proper since the People set forth the facts leading to defendant's arrest, not merely conclusory assertions ( compare, People v Hightower, 85 N.Y.2d 988). The court's Sandoval ruling, permitting defendant's impeachment by two prior drug felonies, while precluding inquiry into the underlying facts, constituted a proper exercise of discretion ( People v. Venero, 211 A.D.2d 566, lv denied 86 N.Y.2d 785). Defendant's sentence was not excessive in light of his extensive criminal record.
Concur — Rosenberger, J.P., Rubin, Kupferman, Nardelli and Tom, JJ.