People v. Rivera

215 A.D.2d 102, 626 N.Y.S.2d 93, 1995 N.Y. App. Div. LEXIS 4660

Opinion

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered June 30, 1993, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to three concurrent terms of 6 to 12 years, unanimously affirmed.

The trial court properly refused defendant’s request to charge the jury "not to look out the windows of the jury room” with the binoculars through which a police officer had observed defendant from a roof top vantage point selling narcotics, or to otherwise experiment with the binoculars in an attempt to replicate the officer’s observations. Any conceivable use of the binoculars by the jury could have amounted to "no more than the application of every day perceptions and common sense to the issues presented in the trial” (People v Brown, 48 NY2d 388, 393). Concur—Murphy, P. J., Rosenberger, Rubin, Tom and Mazzarelli, JJ.