People v. Vasquez

Judgments, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 7, 1992, convicting defendant under indictment 1239/90, after a jury trial, of robbery in the first degree and robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 9 to 18 years and 5 to 10 years, respectively, to run concurrently with his sentence of 6 to 12 years, upon his conviction under indictment 2353/90, after his plea of guilty, to robbery in the second degree, unanimously affirmed.

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 AD2d 455, 456, lv denied 85 NY2d 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 AD2d 160, 161, lv denied 76 NY2d 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 AD2d 1002, 1003-1004, lv denied 81 NY2d 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 NY2d 23, 34; People v Johnson, 192 AD2d 674, 674-675, lv denied 82 NY2d 720). Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.