Opinion
August 31, 1992
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
At the hearing, the codefendant Jacques Webb's mother, Rose, and her friend, Brenda Wisdom, testified that in mid-trial they had overheard Juror Number 3 talk about the case with a friend on a bus, in terms that suggested a predisposition to vote guilty. Juror Number 3 testified, however, that she did not discuss the case with anyone, but that Mrs. Webb had accosted her on the bus exclaiming, "my son is innocent". The juror further averred that she formed no opinion about the case until she was deliberating with her fellow jurors. Her verdict was based solely upon "all of the facts that we heard", including a rereading of the codefendant Webb's testimony. We find on this record that the defendant failed to carry his burden of establishing that the alleged misconduct by Juror Number 3 "may have affected a substantial right of the defendant" (see, CPL 330.30; People v. Brown, 48 N.Y.2d 388; People v. Horney, 112 A.D.2d 841; People v. Phillips, 87 Misc.2d 613, affd 52 A.D.2d 758).
Turning to the alleged trial error, we note that although the trial court's ruling with respect to the scope of the defendant's cross-examination of the People's rebuttal witness was arguably somewhat restrictive, it did not constitute reversible error, particularly since curative instructions were given (see, People v. Gonzalez, 38 N.Y.2d 208). The defendant's contention that the trial court's jury instruction regarding the voluntariness of the statement made by him to law enforcement officials was incomplete is unpreserved for appellate review (see, CPL 470.05), and, in any event, is without merit.
The defendant's sentence was not excessive. The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit. Mangano, P.J., Harwood, Balletta and Miller, JJ., concur.