Opinion
January 11, 1994
Appeal from the Supreme Court, Bronx County, Phylis Skloot Bamberger, J., Harold Silverman, J.
Police, passing by defendant while on routine patrol, observed defendant, through his open jacket, shove something into his waistband. During a second pass, police observed the butt of a gun protruding two or three inches above defendant's waistline. The officers stopped defendant, and, after a struggle, recovered the gun and bullets.
Viewing the evidence in the light most favorable to the People and giving due deference to the jury's findings on credibility, under the standards set forth in People v. Bleakley ( 69 N.Y.2d 490, 494-495), defendant's guilt was proved beyond a reasonable doubt by overwhelming evidence and the verdict was not against the weight of the evidence.
We have no basis to disturb the hearing court's findings on credibility, nor do we conclude that the officer's testimony was tailored or otherwise was incredible (see, People v. Grajales, 187 A.D.2d 631, lv denied 81 N.Y.2d 789). By failing to challenge the statement of a police officer to his partner, that the officer believed that defendant had a gun, on hearsay grounds, the present claim is unpreserved for review (see, People v Cruz, 191 A.D.2d 343, lv denied 81 N.Y.2d 1012). Since this was appropriate narrative testimony, and was not offered to prove the fact that defendant had a gun, we find no basis to review in the interest of justice. Nor did defendant preserve a challenge to testimony by a police officer that defendant possessed hollow point bullets. The description of the bullets as being hollow pointed did not in any manner detract from the relevance of testimony that bullets were recovered from defendant.
During deliberations, a juror contacted the court, and indicated his discomfort with continued participation. Generally, the juror indicated to the court that he was uneasy with people and was not a good communicator. After several questions addressed to the juror, the court ascertained that, in fact, this juror could continue to serve. Defense counsel of record, as well as the defense attorney second seating her, both agreed that the inquiry should take place in defendant's absence. This explicit waiver of defendant's presence, which likely arose from strategic considerations, waives the claim for review (People v. Grant, 178 A.D.2d 283, lv denied 79 N.Y.2d 920). Nor did the nature of the questioning amount to elaborate instructions exhorting the juror to return to deliberations or expound on legal principles (see, People v. Carr, 168 A.D.2d 213, 214, citing, inter alia, People v Cain, 76 N.Y.2d 119). In view of the specific procedures employed here, the nature of the questions and answers, and counsel's evident satisfaction with the outcome, we decline to review in the interest of justice.
Concur — Ellerin, J.P., Asch, Rubin and Nardelli, JJ.