People v. Wilson

202 A.D.2d 353, 609 N.Y.S.2d 232, 1994 N.Y. App. Div. LEXIS 3019

Opinion

—Judgment, Supreme Court, New York County (Angela Mazzarelli, J.), rendered September 16, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

Viewed in a light most favorable to the People, the officers’ eyewitness testimony amply proved beyond a reasonable doubt that defendant possessed cocaine with the intent to sell it. Defendant’s challenge to the court’s instructions is not preserved for review as a matter of law (CPL 470.05 [2]; People v Harrell, 59 NY2d 620, 622), and we decline to review it in the interest of justice. Were we to do so, we would find that the court’s instruction that the jury could, "if you are able”, continue deliberations while awaiting responses to notes was permissive and did not prejudice defendant (compare, People v Barbella, 154 AD2d 687, lv denied 75 NY2d 810, cert denied 495 US 908, with People v Morse, 182 AD2d 781). Concur— Ellerin, J. P., Wallach, Kupferman, Rubin and Williams, JJ.