Opinion
June 6, 1995
Appeal from the Supreme Court, Bronx County (Joseph Fisch, J.).
Defendant's claim regarding the trial court's supplemental instructions in response to the jury's note about the fairness of the lineup is unpreserved as a matter of law ( People v. Dixon, 211 A.D.2d 455, 456, lv denied 85 N.Y.2d 861), and we decline to review it in the interest of justice, defendant actually having consented thereto. If we were to review it, we would find that the court's instructions regarding the jury's role as the fact finder and the manner in which it should assess the evidence were "responsive to the jury's concerns and evenhandedly advised the jury to use its best efforts to reach a verdict" ( People v Adams, 167 A.D.2d 160, 161, lv denied 76 N.Y.2d 1019).
Also unpreserved is defendant's contention that he was improperly excluded during an inquiry of a juror who had observed him in handcuffs in the hallway shortly before the court's final charge to the jury ( People v. Rios, 185 A.D.2d 1002, 1003-1004, lv denied 81 N.Y.2d 846), and we decline to review in the interest of justice. If we were to review, we would find that the limited inquiry by the court, during which defense counsel chose to ask the juror only one question, did not constitute "a core segment of [the] trial", and that "defendant's absence [could not] have had an effect on the opportunity to defend" ( People v Aguilera, 82 N.Y.2d 23, 34; People v. Johnson, 192 A.D.2d 674, 674-675, lv denied 82 N.Y.2d 720).
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.