People v. Toxey

Defendant did not preserve his challenge to the court’s use of hypothetical examples in its supplemental instructions on constructive possession, and we decline to review it in the interest of justice. As an alternative holding, we find that the court provided a meaningful response to the jury’s request for further instructions on the issue (see People v Malloy, 55 NY2d 296 [1982], cert denied 459 US 847 [1982]). The court’s use of a set of hypotheticals was balanced and fair to the positions of both sides, and the court did not signal any opinion on the question of guilt or innocence (see People v Leach, 6 AD3d 238, 239 [2004], lv denied 3 NY3d 643 [2004]). We perceive no basis for reducing the sentence. Concur— Friedman, J.P, Sweeny, Renwick, DeGrasse and Román, JJ.