The People of the State of New York, Respondent, v. Marc Davis, Appellant

The People of the State of New York, Respondent, v Marc Davis, Appellant. [670 NYS2d 76] [MAJORITY] —Judgment, Supreme Court, New York County (Howard Bell, J., on pre-trial motions; Jay Gold, J., at jury trial and sentence), rendered June 27, 1995, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 1 to 3 years, unanimously affirmed. The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There was ample evidence of defendant’s intentional participation in the sale, including his response to directions given by the codefendant. Defendant’s challenge to the motion court’s failure to address the Dunaway issue raised in his suppression motion has not been preserved for appellate review, since defendant did not alert the court to the fact that, unlike all the other branches of the motion, the Dunaway branch had been overlooked, and defendant thereby acquiesced in the lack of a ruling (People v Adams, 246 AD2d 315). We decline to review this claim in the interest of justice. The court properly exercised its discretion when it precluded defendant from asking prospective jurors whether certain hypothetical facts would be legally sufficient proof of guilt (People v Boulware, 29 NY2d 135, cert denied 405 US 995). Defendant’s remaining contentions concerning the voir dire are unpreserved and without merit. Concur — Sullivan, J. P., Milonas, Rosenberger and Tom, JJ.