Opinion
October 13, 1987
Appeal from the Supreme Court, Kings County (O'Brien, J.).
Ordered that the judgment, as amended, is affirmed.
Contrary to the defendant's contention, the Trial Judge in this case did not abdicate his responsibility over supervision of the jury's deliberations (cf., People v. Ahmed, 66 N.Y.2d 307, 310, rearg denied 67 N.Y.2d 647). Although it was not technically proper practice for the trial court to reply to the jury's note indicating that it had "reached an impasse" by sending a court officer to tell them to continue deliberating, it did not constitute reversible error. Both the defendant and the prosecutor were informed of the receipt of this note from the jury, and neither objected to the court's method of replying to it. The message given to the jury to "continue deliberating", was neutral and noncoercive. Moreover, urging the jury to continue deliberating was clearly appropriate under the circumstances (see, People v. Pagan, 45 N.Y.2d 725, 727).
The defendant failed to preserve for appellate review his objection to the trial court's denial of the jury's postsummation request to view the scene of the crime (see, CPL 470.05). In any event, such a postsummation viewing is only permissible when both parties consent to it which they did not in this case (see, People v. White, 67 A.D.2d 571, 574, revd on other grounds 53 N.Y.2d 721). Moreover, even if both parties had consented, it still would have been a proper exercise of the trial court's sound discretion to deny the request to view the scene (see, People v. White, supra, at 574).
The hearing court correctly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence seized at the time of his arrest. The defendant lacked standing to challenge the constitutionality of the seizure of items from the basement of the building since he failed to establish any possessory interest or legitimate expectation of privacy with regard to the basement (see, People v. Rodriguez, 69 N.Y.2d 159, 163; People v. Ponder, 54 N.Y.2d 160, 166). Entering the defendant's apartment to arrest him after he opened the door was justified by probable cause and exigent circumstances (see, People v. Herrara, 112 A.D.2d 315, 316; People v. Green, 103 A.D.2d 362, 363-364). Once inside the apartment, it was proper for the police to seize the weighing scale which they observed in "plain view" (see, People v. Basilicato, 64 N.Y.2d 103, 115; People v Scott, 116 A.D.2d 756, lv denied 67 N.Y.2d 889). The police were also entitled to search the defendant's jacket before giving it to him to wear, in order to protect themselves, as part of a search incident to his lawful arrest (see, People v. Belton, 55 N.Y.2d 49, 52-53, rearg denied 56 N.Y.2d 646; People v. Johnson, 86 A.D.2d 165, 168, affd 59 N.Y.2d 1014).
The sentence imposed was not excessive and does not require appellate modification (see, People v. Suitte, 90 A.D.2d 80). Thompson, J.P., Weinstein, Rubin and Harwood, JJ., concur.