Opinion
1263
June 4, 2002.
Judgment, Supreme Court, New York County (Patricia Williams, J.), rendered March 11, 1997, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.
MADELEINE GUILMAIN, for Respondent.
LAURENCE J. SASS, for Defendant-appellant.
Nardelli, J.P., Tom, Rosenberger, Wallach, Friedman, JJ.
Defendant's generalized exception failed to preserve his current challenge to the court's instruction to the jury concerning a purported prior inconsistent statement, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the instruction was proper. Since the initial Grand Jury presentation was limited to only one of the two contemporaneous sales for which defendant was ultimately indicted and convicted, it would have been unfair for the trial jury to treat the undercover officer's failure to mention the second sale at her initial Grand Jury appearance as a prior inconsistent statement (see,People v. Bornholdt, 33 N.Y.2d 75, 88, cert denied 416 U.S. 904). The court properly relied on the People's explanation for the bifurcated Grand Jury presentation, and delivered an appropriate instruction which could not have caused any prejudice to defendant (see, People v. Duncan, 46 N.Y.2d 74, 80-81, cert denied 442 U.S. 910).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.