Opinion
2418, 2419
December 3, 2002.
Judgments, Supreme Court, New York County (James Yates J. at hearing; Carol Berkman, J. at jury trial, plea and sentence), rendered June 22, 1999, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and upon his plea of guilty, of bail jumping in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 4½ to 9 years, unanimously affirmed.
Amy Foote, for Respondent.
Kathryn Wadia, for Defendant-appellant.
WILLIAMS, P.J., NARDELLI, ELLERIN, RUBIN, MARLOW, JJ.
Defendant's suppression motion was properly denied. Probable cause was established by the arresting officer's testimony that the purchasing undercover officer, who remained in continuous contact, transmitted a "positive buy" signal involving two individuals, including their description and location (People v. Muniz, 276 A.D.2d 346, lv denied 96 N.Y.2d 762; see also People v. Gonzalez, 99 N.Y.2d 762 [Oct 24, 2002], 2002 WL 31387537).
Defendant's claim that he was deprived of a fair trial by the court's conduct is not preserved for appellate review (see People v. Charleston, 56 N.Y.2d 886), and we decline to review it in the interest of justice. Were we to review this claim, we would reject it. The court's participation in the trial and admonitions to defendant concerning the proper examination of witnesses served to clarify the testimony (see People v. Moulton, 43 N.Y.2d 944). The court's comments could not have been construed by the jury as an expression of the court's opinion on the merits, particularly since the court instructed the jury to the contrary.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.