People v. Pizarro

190 A.D.2d 634, 594 N.Y.S.2d 159, 1993 N.Y. App. Div. LEXIS 1683

Opinion

— Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered January 17, 1990, convicting defendant, after a jury trial, of three counts of grand larceny in the fourth degree, and sentencing him to concurrent prison terms of six months imprisonment and five years probation, unanimously affirmed.

While appellate review of a trial court’s improper use of a court clerk "to instruct” the jury foreperson concerning the verdict sheet would not be precluded by a defendant’s failure to object thereto (see, People v Bonaparte, 78 NY2d 26, 31), review here is precluded by the absence of any record of what the clerk said, if anything, to the foreperson (see, People v Fernandez, 183 AD2d 605, lv granted 80 NY2d 840), there being a presumption of regularity in the absence of substantial evidence to the contrary (People v Lopez, 97 AD2d 5). Nor is reversal required by reason of the court’s interested witness charge. The security guards who testified at trial were not interested witnesses as a matter of law merely because they might be subject to a civil suit in the event of acquittal, and the court’s charge otherwise permitted the jury to consider the potential interest of any witness (see, People v Martin, 168 AD2d 221, 222, lv denied 11 NY2d 997). Concur — Sullivan, J. P., Ellerin, Wallach, Ross and Rubin, JJ.