Opinion
5844.
April 12, 2005.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered March 17, 2003, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree and two counts of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 15 years concurrent with two consecutive terms of seven years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa Joy Robertson of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Susan Gliner of counsel), for respondent.
Before: Tom, J.P., Marlow, Sullivan, Nardelli and Williams, JJ.
The court properly exercised its discretion in granting the deliberating jury's request to take notes during readbacks and supplemental instructions. Although defendant objected to the court's decision to permit the jury to take notes, he did not object to the court's cautionary instructions or suggest different language. Accordingly, defendant's challenge to the adequacy of those instructions is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court's instructions were adequate in that they conveyed the substance of the cautions set forth by the Court of Appeals in People v. Hues ( 92 NY2d 413, 419).
The court properly denied defendant's request for a missing witness charge. The record supports the court's conclusion that the witness could not provide any material, noncumulative testimony ( see People v. Gonzalez, 68 NY2d 424, 427-428).
We perceive no basis for reducing the sentence.