Opinion
December 20, 1994
Appeal from the Supreme Court, Bronx County (Fred Eggert, J.).
After he had been threatened the previous night, the complaining witness failed to identify the defendant in court. The trial court interrupted the direct examination of the complainant to apprise him of the penalties of perjury and allow him to silently review his Grand Jury testimony in order to refresh his recollection. This action by the court was never objected to at the trial, and any alleged error was consequently waived as a matter of law (CPL 470.05; see also, People v Charleston, 56 N.Y.2d 886, 887). In any event, the court never exceeded appropriate bounds and intervened simply to clarify an issue and elicit significant facts, in a manner that did not prejudice defendant.
In addition, the trial court properly questioned three jurors during a preliminary screening of jurors to determine whether their family obligations hindered them from effectively serving on the jury. "The presence of neither defendant nor counsel was required at sidebar discussions where the trial court posed questions to unsworn prospective jurors relating solely to the qualifications, in a general sense, of those individuals to sit as jurors, matters which are solely for the court" (People v Kirkland, 199 A.D.2d 54, lv denied 83 N.Y.2d 806).
Finally, even assuming testimony of a correction officer did constitute bolstering, it was insufficient to warrant reversal (see, People v Nunez, 162 A.D.2d 298, lv denied 76 N.Y.2d 862). After his initial hesitation, the complainant clearly and strongly identified defendant as his attacker and testified he knew defendant before the attack and before his incarceration. The alleged bolstering testimony was not given undue prominence and there is no risk that the jury took that testimony as a substitute for the eyewitness identification (supra, at 299).
Concur — Sullivan, J.P., Ellerin, Kupferman and Asch, JJ.