People v. Tucker, 153 A.D.2d 164, 550 N.Y.S.2d 1 (1st Dept.); People v. Schiliro, 179 A.D.2d 693, 578 N.Y.S.2d 259 (2d Dept.); People v. Dexheimer, 214 A.D.2d 898, 625 N.Y.S.2d 719 (3d Dept.); People v. Vaccarella, 177 A.D.2d 990, 578 N.Y.S.2d 11 (4th Dept.).         Juror note-taking has received considerable attention in recent years from courts, jury reform advocates and legal scholars.

Decided June 8, 1992 Appeal from 179 A.D.2d 693 (2d Dept.) APPEALS WITHDRAWN AND DISCONTINUED

Here, contrary to the defendant's contention, juror number nine's testimony that juror number two insulted her and bullied her, which the Supreme Court credited, raises no question of outside influence but, instead, seeks to impeach the verdict by delving into the tenor of the jury (seePeople v. Torres, 189 A.D.3d at 898, 136 N.Y.S.3d 422 ; People v. Karen, 17 A.D.3d 865, 867, 793 N.Y.S.2d 273 ). Although the notes juror number two briefly used during deliberations were contrary to the court's instructions, the evidence adduced at the hearing established that these notes consisted only of evidence that had been presented at trial (seePeople v. Schiliro, 179 A.D.2d 693, 694, 578 N.Y.S.2d 259 ). Juror number nine also testified that she heard juror number two state that he had looked up the defendant and he was a "bad guy."

New York courts have disapproved similar prohibitions forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time (see, People v. Joseph, 84 N.Y.2d 995; People v. Lowrey, 253 A.D.2d 893; compare, People v. Schiliro, 179 A.D.2d 693). In view of the due process considerations involved when a tenured teacher is threatened with termination of his employment, this is a sound approach, particularly in the instant case, where the time period involved was 10 weeks.

Since the witness was unavailable, the charge was properly denied (see, People v Gonzalez, 68 N.Y.2d 424; People v Morgan, 177 A.D.2d 655). Moreover, any error in this regard would be harmless in light of the overwhelming evidence of the defendant's guilt, which included strong identification testimony from the store proprietor, fingerprints found on the cash box which matched those of the defendant, and the fact that when arrested, the defendant was wearing a jacket taken from the store. Contrary to the defendant's further contention, the court did not violate his constitutional right to consult with counsel when it directed him not to confer with his attorney during the lunchbreak taken during his cross-examination (see, Perry v Leeke, 488 U.S. 272; People v Schiliro, 179 A.D.2d 693; People v Enrique, 165 A.D.2d 13, affd 80 N.Y.2d 869). Nor was the defense counsel's assistance ineffective due to his failure to call a fingerprint expert to testify that the prints found at the scene were not the defendant's.

The defendant's remaining contentions are either unpreserved for appellate review or without merit (see, CPL 710.30; People v Delgado, 80 N.Y.2d 780; People v Johnston, 182 A.D.2d 707; People v Schiliro, 179 A.D.2d 693; People v Cuba, 154 A.D.2d 703; People v DeArmas, 106 A.D.2d 659, 660). Sullivan, J.P., Balletta, O'Brien and Copertino, JJ., concur.