People v. Ortega , 602 N.Y.S.2d 860 ( 1993 )

—Judgment, Supreme Court, New York County (Martin H. Rettinger, J.), rendered October 15, 1991, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of AV2 to 9 years, unanimously affirmed.

Defendant’s contention that he was denied a fair trial because several members of the jury overheard sidebar conferences at which the Trial Judge expressed his opinion of the case is not preserved for appellate review and we decline to reach it in the interest of justice. Were we to consider this contention, we would find it without merit. There is no basis for defendant’s speculation that the Trial Judge "sarcastically correct[ed]” codefendant’s counsel; rather, it appears that the Judge was merely seeking clarification of whether counsel intended to inquire on reopened cross-examination into two matters that had been raised at the sidebar or to ask only one question. Similarly, there is no basis for defendant’s assertion that "the jury could have very well concluded that the judge thought that the [ADA] was more ethical than the defense attorneys and that the defense case was meritless”. In fact, the Judge indicated that co-counsel’s strategy of bringing out on cross-examination information concerning another arrest made at the site of the defendants’ arrest was proper, and limited his objections to any effort to misleadingly convey that the prosecutor had deliberately withheld information on this matter from the jury. Since defendant was not unfairly prejudiced by these remarks, he was not deprived of a fair trial (see, People v Vega, 183 AD2d 864, 865, lv denied 80 NY2d 911). Finally, we note that the Trial Judge made it clear that the jurors were not to consider any comments they may have overheard and that it was only their evaluation of the evidence presented at trial that was determinative. Concur— Rosenberger, J. P., Wallach, Kupferman and Nardelli, JJ.