Opinion
April 7, 1998
Appeal from the Supreme Court, Bronx County (Richard Lee Price, J.).
The court did not delegate a judicial function to a court officer with respect to a note from the deliberating jury. "Although we have previously indicated that we do not condone use of court personnel to request jury clarification of a facially unclear note" (People v. Thomas, 190 A.D.2d 541, 542, lv denied 81 N.Y.2d 1021), there is no proof in the record that the court officer delivered any instructions to the jury or performed any functions "other than ministerial in nature" (People v. Branford, 220 A.D.2d 203, lv denied 87 N.Y.2d 1017; see, People v. Bonaparte, 78 N.Y.2d 26). Defendant's remaining claims concerning the court's handling of the note are unpreserved and without merit.
The court properly exercised its discretion in denying defense counsel's request to be substituted on the eve of jury selection. Counsel presented no "exigent or compelling circumstances" that justified the substitution (People v. Arroyave, 49 N.Y.2d 264, 271; see, People v. Sides, 75 N.Y.2d 822). Defendant's isolated outburst and frustration with counsel was nothing more than a disagreement over strategy that was resolved once the determination was made to proceed to trial, where counsel zealously represented defendant without further incident (People v. Newell, 200 A.D.2d 451).
We perceive no abuse of sentencing discretion.
Concur — Milonas, J.P., Nardelli, Mazzarelli and Saxe, JJ.