Opinion
March 11, 1994
Appeal from the Erie County Court, D'Amico, J.
Present — Denman, P.J., Pine, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the court did not comply with CPL 270.40 because it failed to instruct the jurors in its preliminary instructions that prior to discharge they were prohibited from arranging for any payment or benefit in return for information concerning the trial and that they had a duty to report any attempt to influence improperly any member of the jury. Defendant, however, did not object to the court's preliminary instructions. The issue, therefore, has not been preserved for our review and we decline to review it in the interest of justice (see, People v. Moore, 161 A.D.2d 733, 734, lv denied 76 N.Y.2d 895; People v. Hickey, 133 A.D.2d 421, 423; People v. Van Etten, 94 A.D.2d 953). In any event, the court's failure to comply strictly with the mandates of CPL 270.40, as amended in 1990 (L 1990, ch 305, § 1), is harmless error in light of the overwhelming proof of defendant's guilt (see, People v. Van Etten, supra, at 953). There is no significant probability that, but for the error, the jury would have acquitted defendant (see, People v. Crimmins, 36 N.Y.2d 230, 242).
The record reveals that defendant's attorney provided meaningful representation (see, People v. Rivera, 71 N.Y.2d 705, 708-709; People v. Baldi, 54 N.Y.2d 137, 146-147).
Lastly, defendant's sentence is neither unduly harsh nor severe.