People v. Rivera , 649 N.Y.S.2d 477 ( 1996 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered June 26, 1995, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the court denied him an opportunity to participate in formulating a response to a note sent by the jury during deliberations is not preserved for appellate review. The court showed the contents of the note to defense counsel and also read the note into the record in the presence of the jury. At that time, pursuant to an agreement between the court, the prosecutor, and defense counsel, the court sought clarification of the jury’s request for "the charges”. After the testimony requested by the jury had been read back, the court stated, "Let’s go into the charges”. Defense counsel did not object even though she was aware at that point that the court was about to respond to the jury’s request for "the charges”, and even though she had knowledge of the substance of the court’s intended response—a verbatim reading of the initial instructions on assault in the second and third degrees. Defense counsel’s silence at a time when any error by the court could have been obviated by a timely objection renders the present claim unpreserved for appellate review (see, People v Starling, 85 NY2d 509, 516). Santucci, J. P., Joy, Krausman and Florio, JJ., concur.