Opinion
January 9, 1996
Appeal from the Supreme Court, Bronx County (Joseph Fisch, J.).
Defendant's claim that the evidence was insufficient to prove his guilt of possession of a loaded firearm, because there was no evidence that the ammunition was live, is unpreserved for appellate review as a matter of law since no specific objection or motion on that ground was made ( People v Gray, 86 N.Y.2d 10; People v Perkins, 201 A.D.2d 511, lv denied 83 N.Y.2d 875), and we decline to review it in the interest of justice. Were we to review it, we would find that the evidence was sufficient for the jury to infer that the .357 magnum was loaded and operable ( see, People v Perkins, supra; People v Cabey, 199 A.D.2d 197, mod on other grounds 85 N.Y.2d 417).
Defendant has failed to provide an adequate record to review his claim that he was absent from voir dire conferences with several jurors ( People v Kinchen, 60 N.Y.2d 772; People v Arhin, 203 A.D.2d 62, 62-63, lv denied 83 N.Y.2d 908), and in any event, the existing record indicates he was present.
Defendant's claim that the court failed to respond meaningfully to a jury note is also unpreserved as he failed to object to the response proposed by the court, nor did he except to the supplemental instruction as given ( see, People v Marrero, 219 A.D.2d 518; People v Bunch, 207 A.D.2d 460, lv denied 84 N.Y.2d 866). Since the jury note inquired as to "how and when fingerprints should be permitted", and the only evidence in the case was simply that no fingerprints were taken, the court appropriately told the jury to decide the case on the evidence, thereby avoiding undue speculation. In these circumstances, such response was meaningful ( People v Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847).
Concur — Sullivan, J.P., Rosenberger, Ellerin, Rubin and Nardelli, JJ.