People v. Gavin

224 A.D.2d 223, 638 N.Y.S.2d 295, 1996 N.Y. App. Div. LEXIS 952

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered June 2, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree, and sentencing him to concurrent terms of 21/ 2 to 71/ 2 years, 21h to l1 h years, and 1 to 3 years, respectively, unanimously affirmed.

Defendant’s claim that the court should have instructed the jury on evidence of flight is unpreserved, and should not be reviewed in the interest of justice where the evidence was minimal and defendant’s failure to request the instruction can only be viewed as a tactical decision (see, People v Reid, 165 AD2d 776, lv denied 76 NY2d 990). Defendant’s other claim that the court’s discharge of a sworn juror was made without adequate inquiry into the juror’s unavailability was raised and rejected in the codefendant’s appeal (People v Sparrow, 220 AD2d 321), and we see no reason to depart from that ruling. Concur — Ellerin, J. P., Kupferman, Ross and Williams, JJ.