Opinion
February 18, 1993
Appeal from the Supreme Court, Bronx County (Lawrence Tonnetti, J.).
Defendant failed to seek a mistrial or other curative relief on the basis of the court's marshalling of the evidence and thus his objection thereto is unpreserved (cf., People v Lewis, 64 N.Y.2d 1031), and in view of the overwhelming evidence of guilt, we decline to review in the interest of justice (People v Alexander, 153 A.D.2d 507, 509, affd 75 N.Y.2d 979).
Nor did defendant preserve any challenge to the court's supplemental instructions on burglary (People v Gruttola, 43 N.Y.2d 116, 123), and we decline to review his present claim in the interest of justice.
Since defendant submitted only a hearsay affidavit in support of his motion to vacate the judgment (People v Salaam, 187 A.D.2d 363; cf., People v Smith, 187 A.D.2d 365), and failed to exercise sufficient due diligence to preserve an adequate record prior to sentence (CPL 440.10 [a]), and in view of the court's grant of leave to renew the application upon submission of an appropriate affidavit, an opportunity defendant did not pursue, we find no basis to reverse the order summarily denying the motion. The factors which we found to have provided a basis for ordering a hearing in Smith pursuant to CPL 330.40, are not present here.
Concur — Murphy, P.J., Carro, Kupferman, Asch and Kassal, JJ.