PEOPLE v. DEGUERO (1999)

Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered July 24, 1997, 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 seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 41/212 to 9 years and 1 year, respectively, unanimously affirmed.

Defendant's challenge for cause to a prospective juror was properly denied.   Defendant's claim that the court should have obtained an expurgatory oath or conducted clarifying inquiries before seating the challenged juror is unpreserved for review (People v. Moon, 256 A.D.2d 24, 682 N.Y.S.2d 133, lv. denied 93 N.Y.2d 901, 689 N.Y.S.2d 713, 711 N.E.2d 989;  People v. Reyes, 255 A.D.2d 228, 681 N.Y.S.2d 241, lv. denied 93 N.Y.2d 878, 689 N.Y.S.2d 440, 711 N.E.2d 654), and we decline to review it in the interest of justice.   Were we to review the issue, we would find that although the prospective juror expressed strong positive feelings about the tactics used by police in drug arrests, her prior responses established that she would be impartial and would follow the court's instructions on the law (see, People v. Allen, 257 A.D.2d 397, 685 N.Y.S.2d 171, lv. denied 93 N.Y.2d 850, 688 N.Y.S.2d 497, 710 N.E.2d 1096;  People v. Middleton, 220 A.D.2d 202, 631 N.Y.S.2d 837, lv. denied 87 N.Y.2d 848, 638 N.Y.S.2d 607, 661 N.E.2d 1389).

The court did not err in declining to charge the affirmative defense of entrapment.   The evidence, viewed most favorably to defendant, failed to support such defense (see, Penal Law § 40.05;  People v. Brown, 82 N.Y.2d 869, 609 N.Y.S.2d 164, 631 N.E.2d 106).

MEMORANDUM DECISION.