People v. Gonzalez

155 A.D.2d 310, 547 N.Y.S.2d 282, 1989 N.Y. App. Div. LEXIS 14201

Opinion

— Judgment, Supreme Court, New York County (Rose L. Rubin, J.), rendered September 28, 1987, convicting defendant, after a jury trial, of one count of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), and sentencing him to an indeterminate term of imprisonment of 4 Vi to 9 years, unanimously affirmed.

The defendant’s claim that the jury engaged in premature deliberations was not preserved for appellate review as a matter of law (CPL 470.05 [2]; People v Michael, 48 NY2d 1, 6). In any event, the single question asked by the foreperson specifically referred to the exhibit being shown and there was no evidence of prior jury discussions or discussions relating to anything beyond that piece of evidence. The single question involved neither "sifting of facts” nor consideration of " 'outside influences’ ”. (People v Horney, 112 AD2d 841, 843.) Further, the court warned the jurors several times to keep an open mind and the jury is presumed to have followed these instructions. (People v Davis, 58 NY2d 1102.) Finally, any error herein would be considered harmless (People v Crimmins, 36 NY2d 230). Concur — Murphy, P. J., Sullivan, Kassal, Wallach and Smith, JJ.