PEOPLE v. PIZARRO

While appellate review of a trial court's improper use of a court clerk "to instruct" the jury foreperson concerning the verdict sheet would not be precluded by a defendant's failure to object thereto (see, People v Bonaparte, 78 N.Y.2d 26, 31), review here is precluded by the absence of any record of what the clerk said, if anything, to the foreperson (see, People v Fernandez, 183 A.D.2d 605, lv granted 80 N.Y.2d 840), there being a presumption of regularity in the absence of substantial evidence to the contrary (People v Lopez, 97 A.D.2d 5). Nor is reversal required by reason of the court's interested witness charge. The security guards who testified at trial were not interested witnesses as a matter of law merely because they might be subject to a civil suit in the event of acquittal, and the court's charge otherwise permitted the jury to consider the potential interest of any witness (see, People v Martin, 168 A.D.2d 221, 222, lv denied 77 N.Y.2d 997).

Concur — Sullivan, J.P., Ellerin, Wallach, Ross and Rubin, JJ.