Opinion
December 23, 1994
Appeal from the Onondaga County Court, Cunningham, J.
Present — Pine, J.P., Lawton, Fallon, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: County Court did not err in admitting the audio tape recording of the aborted drug transaction that resulted in the death of Syracuse Police Officer Wallie Howard. The People established a proper foundation for the receipt of the audio tape into evidence through the testimony of Officer Reidy (see, People v Ely, 68 N.Y.2d 520, 527).
The record does not support the contention that the conduct of the Judge deprived defendant of a fair trial (cf., People v Ahmed, 66 N.Y.2d 307). Regrettably, however, the record reflects a remark made outside the presence of the jury that was intemperate in the extreme and wholly inappropriate.
The remaining issue raised by defendant is not preserved for review (see, CPL 470.05), and we decline to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).