
    The People of the State of New York, Respondent, v Gustavo Martinez, Appellant.
   Appeal by the defendant from a judgment of the Supreme Court, Kings County (Golden, J.), rendered May 25, 1982, convicting him of manslaughter in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. By order of this court dated December 30, 1985, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Kings County, for a hearing on the defendant’s motion to resettle the transcript of his trial (People v Martinez, 115 AD2d 768). Criminal Term has now filed its report.

Justice Presiding Bracken has been substituted for Justice O’Connor, who has retired from the Bench in the interim (22 NYCRR 670.2 [c]).

Judgment affirmed.

When this appeal was initially considered by this court, the defendant claimed that he was absent from the courtroom during supplemental jury instructions. On the eve of the oral argument of the appeal, the defendant moved in this court for leave to supplement the record on appeal with affidavits purporting to establish that he was absent from the courtroom during supplemental jury instructions. This court deemed the motion to supplement the record to be a motion for resettlement of the transcript, and referred the motion to the Trial Justice for a hearing, holding the appeal in abeyance in the interim.

However, after the Trial Justice had commenced taking testimony pursuant to the direction of this court, the defendant withdrew the claim that he had been absent from the courtroom during supplemental jury instructions. Consequently, that claim is no longer before this court.

We note that the defendant’s remaining contention is unpreserved and, in any event, meritless. Bracken, J. P., Brown, Weinstein and Kunzeman, JJ., concur.  