People v. Stewart

—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 NY2d 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 NY2d 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 [2]), and we decline to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Murder, 2nd Degree.) Present—Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.