Opinion
December 18, 1990
Appeal from the Supreme Court, New York County (Harold Rothwax, J., Peter McQuillan, J.).
Defendant's convictions arise out of his sales of narcotics with his codefendants, David Richman and Kenneth Jackson, to an undercover officer on several occasions. At trial, during the jury deliberations, Justice Rothwax became ill and Justice McQuillan presided until verdict.
Defendant's claim as to the "mere presence" charge given at trial is unpreserved for appellate review, and we decline to reach it. Further, while the court's initial conspiracy charge may have been incorrect, a proper supplemental charge was given, obviating any prejudice to defendant. Nor was defendant prejudiced by the substitution of Justice McQuillan for the then incapacitated Justice Rothwax. (People v. Lewis, 71 A.D.2d 7, 10.)
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Kupferman, J.P., Ross, Rosenberger, Asch and Wallach, JJ.