PEOPLE v. SALMON (1999)

Judgment, Supreme Court, Bronx County (Barbara Newman, J.), rendered June 26, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.

We conclude that defendant was not deprived of effective assistance of counsel.   Although defense counsel failed to properly review the court's charge, when given the opportunity prior to the instruction of the jury, counsel corrected this oversight by obtaining a curative instruction that correctly stated the defense theory.   In light of the evidence adduced at trial, the summations, and the court's charge as a whole (see, People v. Andujas, 79 N.Y.2d 113, 118, 580 N.Y.S.2d 719, 588 N.E.2d 754), the court's supplementary instruction could not have confused the jury as to the theory advanced by defendant (see, People v. Bright, 260 A.D.2d 816, 690 N.Y.S.2d 279;  People v. Taylor, 191 A.D.2d 524, 595 N.Y.S.2d 60, lv. denied 82 N.Y.2d 708, 601 N.Y.S.2d 605, 619 N.E.2d 682;  People v. Corchado, 166 A.D.2d 279, 560 N.Y.S.2d 462).   Defendant has therefore failed to establish that defense counsel's conduct deprived him of a fair trial (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584).

MEMORANDUM DECISION.