People v. Wilson

—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 *354court’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.