People v. Isaac ( 1995 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered August 9, 1990, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

During his summation, the defense counsel requested that the members of the jury try to fit a stainless-steel .45 caliber automatic gun, which had been introduced into evidence by the People, into the pocket , of a pair of shorts, which had been introduced into evidence by the defendant. The defense counsel apparently intended to demonstrate the unreliability of the testimony of the two police officers who claimed to have observed a "bulge” protruding from the shorts worn by the defendant at the time of his arrest.

The defendant argues that the court erred in not allowing the jury to experiment with the gun and the shorts that had been introduced into evidence. We note that the experiment proposed by the defense counsel, involving as it did an empty pair of shorts, would have been carried out under conditions far different from those which existed at the time of defendant’s arrest when, as is obvious, the shorts were being worn. We also note that there is some evidence that other items might have been concealed in the pockets of the defendant’s shorts at the time of his arrest. Considering the discretionary nature of the determination as to which items of real evidence may be furnished to a retiring jury (see, CPL 310.20 [1]), we find no reversible error in this case (see generally, People v Legister, 75 NY2d 832; People v Brown, 48 NY2d 388; People v Andrew, 156 AD2d 978). Bracken, J. P., Rosenblatt and Altman, JJ., concur.