v.

PERNORRIS TAYLOR, Appellant.

Submitted By: Tammy Feman (counsel for the appellant); Lawrence J. Schwarz (counsel for the respondent)

Judgment Affirmed: Marquette L. Floyd, P.J.; Robert W. Doyle & Allan Winick, JJ.

DECISION OF THE COURT

<SM-1>

Appeal by defendant from a judgment of the District Court, Nassau County (S. Levine, J.), rendered on April 13, 1999, convicting him of petit larceny (Penal Law § 155.25) and harassment in the second degree (Penal Law § 240.26[1]) and imposing sentence.

Judgment of conviction unanimously affirmed.

Although defendant appeared in court in handcuffs for a brief moment when the jury was called back into the courtroom <SM-2> to break for lunch, there is nothing contained in the record establishing that any of the jurors actually saw defendant in handcuffs, and defense counsel failed to request that the jurors be questioned to determine the effect, if any, of viewing defendant at that time (see, People v. Dawson, 125 AD2d 860, 861). In any event, it is well settled that a juror's brief and inadvertent viewing of a defendant in restraints does not by itself constitute reversible error (People v. Harper, 47 NY2d 857, 858; People v. Farless, 245 AD2d 878, 879). Accordingly, we find that defendant was not deprived of a fair trial.

Contrary to defendant's contention, his right to be present at all material stages of the trial was not violated when the court, in defendant's absence, instructed the jury, on another occasion, to break for lunch and advised the panel not to discuss the case. This ministerial act by the court was unrelated to the substantive legal or factual issues of the trial and defendant's presence was not required (see, People v. Rodriguez, 256 AD2d 478, 479; People v. Nova, 198 AD2d 193, 196).

We further find that the police officer never had <SM-3> "custody" of the stolen property in question which would trigger the requirements of Penal Law § 450.10 since the officer testified that he took pictures of the stolen items and he never left the store with the items (see, People v. Lowe, 135 AD2d 836; People v. Carter, 121 AD2d 644). Although the police officer's testimony regarding his lack of custody of the merchandise was contradicted by the security guard's testimony, this merely raised an issue of credibility for the finder of fact whose determination thereof should not be disturbed on appeal (see, People v. Woods, 141 AD2d 588, 589).

Defendant's next contention, that the flight charge to the jury was erroneous because the jury was not instructed to consider the flight evidence carefully and it shifted the burden of proof, was not preserved for appellate review (CPL 470.05). Defendant's objection was not sufficiently specific (see, People v. Hoke, 62 NY2d 1022; People v. Nuccie, 57 NY2d 818; People v. Ramkisson, 245 AD2d 393). In any event, when reading the charge in its entirety, we find that it was <SM-4> clearly permissible and it could not be construed as obligating the jury to find guilt from defendant's flight (see, People v. Adams, 69 NY2d 805; People v. Yazum, 13 NY2d 302, 304, rearg denied 15 NY2d 679; People v. Griffen, 255 AD2d 792). Finally, we are satisfied that the verdict was not against the weight of the credible evidence (see, People v. Gaimari, 176 NY 84, 94; see also, People v. Hawkins, 216 AD2d 414, 415). Furthermore, viewing the evidence in a light most favorable to the People, we find that the defendant's guilt was proven beyond a reasonable doubt (see, People v. Contes, 60 NY2d 620, 621).

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