Opinion
669
April 4, 2002.
Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered May 14, 1998, convicting defendant, after a jury trial, of attempted assault in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the third degree (two counts), and sentencing him to an aggregate term of 10½ to 24 years, unanimously affirmed.
HILARY HASSLER, for respondent.
JEFFREY DELLHEIM, for defendant-appellant.
Before: Tom, J.P., Sullivan, Rosenberger, Friedman, JJ.
Defendant's challenges to the court's limited inquiry of him, outside the presence of the jury, to determine whether a portion of his proposed testimony was relevant require preservation and we decline to review these unpreserved claims in the interest of justice. There was no "mode of proceedings" error relieving defendant of the requirement of preservation (compare, People v. Agramonte, 87 N.Y.2d 765, with People v. Ahmed, 66 N.Y.2d 307). There is nothing unusual about an inquiry outside the presence of the jury concerning the admissibility of evidence (see,e.g., People v. Ventimiglia, 52 N.Y.2d 350); the question of whether such an inquiry was warranted in this case is distinct from the question of whether preservation was required. Were we to review defendant's claims, we would find that the brief questioning to determine the relevancy of the testimony was appropriate. There was no prejudice because the inquiry resulted in a favorable ruling for defendant, the jury was never informed of the nature of the inquiry, and there is no indication that the inquiry had any effect on defendant's testimony.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.