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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MONICA WILSON, Appellant.

Viewed in a light most favorable to the People, the officers' eyewitness testimony amply proved beyond a reasonable doubt that defendant possessed cocaine with the intent to sell it. Defendant's challenge to the court's instructions is not preserved for review as a matter of law (CPL 470.05; People v. Harrell, 59 N.Y.2d 620, 622), and we decline to review it in the interest of justice. Were we to do so, we would find that the court's instruction that the jury could, "if you are able", continue deliberations while awaiting responses to notes was permissive and did not prejudice defendant (compare, People v Barbella, 154 A.D.2d 687, lv denied 75 N.Y.2d 810, cert denied 495 U.S. 908, with People v. Morse, 182 A.D.2d 781).

Concur — Ellerin, J.P., Wallach, Kupferman, Rubin and Williams, JJ.

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PEOPLE v. WILSON
(Mar 29, 1994)