Opinion
KA 01-00727
March 21, 2003.
Appeal from a judgment of Ontario County Court (Henry, Jr., J.), entered February 14, 2001, convicting defendant after a jury trial of, inter alia, robbery in the first degree.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO Of Counsel), For Defendant-appellant.
R. MICHAEL TANTILLO, District Attorney, CANANDAIGUA (THOMAS D. REH Of Counsel), For Plaintiff-respondent.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant failed to preserve for our review his contention that County Court erred in failing to conduct an inquiry or provide a curative instruction after being informed that a juror had allegedly seen defendant in shackles (see CPL 470.05; People v. Dawson, 125 A.D.2d 860, 861, lv denied 69 N.Y.2d 879; see also People v. Fioravantes, 229 A.D.2d 784, 786, lv denied 89 N.Y.2d 920). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). We reject defendant's contention that the court's Sandoval ruling constitutes an abuse of discretion (see People v. Hayes, 97 N.Y.2d 203, 207-208). Defendant's further contention that the court erred in failing to have the voir dire recorded is not properly before us because defendant's attorney expressly waived the recording of voir dire (see People v. Vasquez, 89 N.Y.2d 521, 533). The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495). Finally, the sentence is not unduly harsh or severe.