PEOPLE v. RAMOS (2001)

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered November 12, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   Defendant's argument that probable cause was not established when the arresting officer testified that defendant fit a particular radioed description, without testifying as to defendant's actual appearance, is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that probable cause was established in that the People elicited the details of the description and the fact that defendant's appearance matched that description (People v. Jones, 277 A.D.2d 30, 716 N.Y.S.2d 565, lv. denied 96 N.Y.2d 784, 725 N.Y.S.2d 649, 749 N.E.2d 218).

 With the consent of the parties, the court properly directed the court clerk to ask the jury whether it still wanted a readback of testimony that it had requested prior to sending a note indicating that a verdict had been reached.   This ministerial procedure was not an improper delegation of judicial authority and it did not implicate defendant's right to be present at a material stage of trial since it did not involve any substantive information about the case or legal instruction (see, People v. Smith, 238 A.D.2d 127, 128, 655 N.Y.S.2d 37, lv. denied 90 N.Y.2d 864, 661 N.Y.S.2d 191, 683 N.E.2d 1065).   However, we note that it would have been preferable had the court made this inquiry of the jury itself.