People v. Gerard

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered June 8, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.

When binoculars used by the police to observe a drug transaction are in evidence, it is within the court’s discretion to permit the jurors to look through the binoculars in order to perceive their degree of magnification (People v Davis, 253 AD2d 687 *580[1998], lv denied 92 NY2d 1030 [1998]; People v Lennon, 223 AD2d 403 [1996], lv denied 87 NY2d 1021 [1996]; People v Rivera, 215 AD2d 102 [1995], lv denied 86 NY2d 801 [1995]; see also People v Mathison, 287 AD2d 384, 385 [2001], lv denied 97 NY2d 706 [2002]). In this case, the court properly exercised its discretion in granting a request from the deliberating jury to leave the windowless jury room and look out the hallway window using the binoculars. The court provided thorough supervision and cautionary instructions. Concur—Nardelli, J.P., Andrias, Ellerin, Gonzalez and Catterson, JJ.