Opinion
January 18, 1994
Appeal from the County Court, Nassau County (Mackston, J.).
Ordered that the judgment is affirmed.
The defendant asserts that his conviction should be reversed because the prosecutor was allowed to elicit identification testimony which had been suppressed for lack of notice pursuant to CPL 710.30, and to comment upon that testimony in summation. His contention is unpreserved for appellate review because he failed to object to the witness's testimony or express dissatisfaction with the curative instructions given by the court in response to an objection during the prosecutor's summation (see, CPL 470.05; People v. Campbell, 187 A.D.2d 442). In any event, while it was error for the trial court to allow the identification testimony without timely notice to the defense counsel pursuant to CPL 710.30, the error was harmless because two other eyewitnesses had identified the defendant as the perpetrator in pretrial lineups and in court, and their identification testimony was properly admitted in evidence (see, People v. Harris, 80 N.Y.2d 796).
Further, any error with regard to the court's failure to consult the defense counsel prior to responding to an oral inquiry by an individual juror is unpreserved for appellate review (see, CPL 470.05). We further note that the jury, after hearing the whole charge, "`would have gathered from its language the correct rule to have been applied in arriving at its verdict'" (People v. Walker, 104 A.D.2d 573, 574, quoting People v. Canty, 60 N.Y.2d 830, 832).
The defendant's remaining contentions are unpreserved for appellate review (see, CPL 470.05), and, in any event, are without merit. Ritter, J.P., Copertino, Pizzuto and Joy, JJ., concur.