Opinion
November 15, 1994
Appeal from the Supreme Court, Bronx County, Harold Silverman, J., Frank Diaz, J.
The hearing court properly held that the police officers had a right to stop defendant based upon the fact that he and his codefendant were running down the street looking over their shoulders and although they claimed to have been robbed, refused to provide the officers with any information (People v. Jones, 118 A.D.2d 86, affd 69 N.Y.2d 853).
Defendant's claims that reversible error occurred during jury deliberations are unpreserved for appellate review and we decline to review them in the interest of justice (CPL 470.05). Defendant was required to object to his counsel's absence from the court's in camera inquiry of juror number nine since that conference was not a material stage of trial (People v. Grant, 178 A.D.2d 283, lv denied 79 N.Y.2d 920). Here, where both defendants expressly agreed to the procedure outlined, defendant effectively waived his counsel's presence at the court's in camera inquiry (People v. Quinones, 197 A.D.2d 376, lv denied 82 N.Y.2d 852). Defendant's claim that juror number nine should have been discharged as unfit to serve is unpreserved since defendant never argued that juror number nine was grossly unqualified under CPL 270.35 or that inquiries pursuant to People v. Buford ( 69 N.Y.2d 290) should have been conducted. Furthermore, since defense counsel never objected to the court's inquiries of juror number nine or of the other jurors, or requested that further inquiries be conducted, any claims of inadequacy of the court's responses are now waived (People v. Almodovar, 196 A.D.2d 718, lv denied 82 N.Y.2d 890, cert denied ___ US ___, 128 L Ed 2d 871). Defendant's argument that the court coerced the jury to reach a verdict by delivering an Allen charge to a hopelessly deadlocked jury is unpreserved since the defendant never objected to the court's instructions that the jury was to decide the case only on the evidence presented in open court. In addition, although defense counsel had made a renewed motion for a mistrial based upon the fact that juror number nine repeated information heard in a courthouse elevator to the other jurors, the court properly declined to grant that motion upon the ground that defense counsel had previously withdrawn the motion, and vigorously opposed a mistrial, thereby waiving any claim that the procedures employed by the court to handle the situation were inadequate (People v White, 53 N.Y.2d 721; People v. Aezah, 191 A.D.2d 312, lv denied 81 N.Y.2d 1010). Were we to reach defendant's claims in the interest of justice, we would find them meritless.
Defendant's argument that the cumulative effect of the prosecutor's misconduct during trial and summation deprived him of a fair trial is, for the most part, unpreserved (CPL 470.05). In any event, most of the alleged misconduct was directly responsive to the improper behavior of codefendant Albert's counsel and was not likely to prejudice defendant. In addition, we find meritless defendant's contention that there was insufficient evidence to sustain his conviction (see, People v Alfonso, 171 A.D.2d 485, lv denied 77 N.Y.2d 991).
Concur — Sullivan, J.P., Carro, Ellerin, Asch and Tom, JJ.