People v. Costello , 549 N.Y.S.2d 5 ( 1989 )

Judgment, Supreme Court, New York County (Paul P. E. Bookson, J.), rendered July 8, 1987, which convicted defendant of the criminal sale of a controlled substance in the third degree, and sentenced him as a predicate felon to a term of 6 to 12 years’ imprisonment, after a jury trial, is unanimously affirmed.

The defendant contends that the jury should have been instructed specifically to disregard evidence on the indictment’s second count, criminal possession of a hypodermic instrument. This charge was dismissed by the trial court during the deliberations. Accordingly, the jury was told not to consider the charge. Defendant argues that the court was bound to tell the jury. However, the defendant neither alerted the court to any possible error nor requested supplemental instructions and, therefore, has waived the point for appellate review (CPL 470.05 [2]). Further, we do not believe there is any basis to reach the issue in the interest of justice. Nonetheless, were we to consider it, we would affirm, finding it to be without merit.

The counts involved two separate crimes, essentially committed at different times, with completely different elements involved, and, accordingly, there was no danger that the jury would commingle the evidence. Concur—Ross, J. P., Milonas, Wallach and Rubin, JJ.