PEOPLE v. RIVERA

Defendant's challenges to the court's limited inquiry of him, outside the presence of the jury, to determine whether a portion of his proposed testimony was relevant require preservation and we decline to review these unpreserved claims in the interest of justice. There was no "mode of proceedings" error relieving defendant of the requirement of preservation (compare, People v. Agramonte, 87 N.Y.2d 765, with People v. Ahmed, 66 N.Y.2d 307). There is nothing unusual about an inquiry outside the presence of the jury concerning the admissibility of evidence (see,e.g., People v. Ventimiglia, 52 N.Y.2d 350); the question of whether such an inquiry was warranted in this case is distinct from the question of whether preservation was required. Were we to review defendant's claims, we would find that the brief questioning to determine the relevancy of the testimony was appropriate. There was no prejudice because the inquiry resulted in a favorable ruling for defendant, the jury was never informed of the nature of the inquiry, and there is no indication that the inquiry had any effect on defendant's testimony.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.