Opinion
November 19, 1997
(Appeal from Judgment of Onondaga County Court, Mulroy, J. — Assault, 2nd Degree.)
Present — Pine, J. P., Lawton, Wisner, Balio and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: The contention of defendant that County Court erred in denying him an opportunity to participate in the formulation of responses to two written inquiries from the jury during deliberations is not preserved for our review (see, People v. Starling, 85 N.Y.2d 509, 516). The first note from the jury was marked as an exhibit and read aloud in defendant's presence, and defendant did not object upon being informed of the court's intended response (see, People v. Rivera, 233 A.D.2d 344, lv denied 89 N.Y.2d 946). Although the court did not seek input from defense counsel before responding to the second note, the court had informed counsel of its intent to deviate from accepted practice before responding to the note, and defendant did not object to the court's procedure (cf., People v O'Rama, 78 N.Y.2d 270, 278). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). We further reject the contentions of defendant that he was denied effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 147; People v. Trait, 139 A.D.2d 937, 938, lv denied 72 N.Y.2d 867) and that prosecutorial misconduct on summation warrants reversal (see, People v. Waller, 239 A.D.2d 934). Finally, we conclude that the sentence is neither unduly harsh nor severe.