PEOPLE v. HIGHSMITH (1998)

 Defendant's conviction of multiple counts of drug-related offenses is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to defendant's contention, County Court did not abuse its discretion in closing the courtroom during the testimony of an undercover officer.   During an in camera hearing, the People presented proof that the officer was involved in ongoing undercover investigations in Erie County and that her safety could be jeopardized if she testified in public (see, People v. Mason, 216 A.D.2d 149, 149-150, 628 N.Y.S.2d 648, lv. denied 86 N.Y.2d 797, 632 N.Y.S.2d 511, 656 N.E.2d 610;  People v. Arroyo, 208 A.D.2d 940, 617 N.Y.S.2d 863, lv. denied 84 N.Y.2d 1009, 622 N.Y.S.2d 920, 647 N.E.2d 126;  People v. Washington, 179 A.D.2d 1002, 579 N.Y.S.2d 272, lv. denied 79 N.Y.2d 1009, 584 N.Y.S.2d 463, 594 N.E.2d 957).   We further conclude that the court properly denied defendant's request to charge lessor included offenses to criminal possession of a controlled substance in the first degree under count one of the indictment.   No reasonable view of the evidence would support a finding that defendant committed the lesser offenses but not the greater (see, People v. Corbitt, 221 A.D.2d 809, 811, 633 N.Y.S.2d 865;  People v. Davis, 170 A.D.2d 1006, 566 N.Y.S.2d 159, lv. denied 77 N.Y.2d 994, 571 N.Y.S.2d 920, 575 N.E.2d 406;  People v. Nelson, 144 A.D.2d 714, 717, 535 N.Y.S.2d 132, lv. denied 73 N.Y.2d 894, 538 N.Y.S.2d 806, 535 N.E.2d 1346).

 Defendant contends that reversal is required because he did not consent to the annotated verdict sheet provided to the jury.   Defense counsel was involved in the preparation of the annotated verdict sheet and did not object to its contents, and thus defendant impliedly consented to its submission (see, People v. Daniels, 244 A.D.2d 867, 665 N.Y.S.2d 131;  People v. Fecunda, 226 A.D.2d 474, 475, 641 N.Y.S.2d 320, lv. denied 88 N.Y.2d 936, 647 N.Y.S.2d 169, 670 N.E.2d 453).   We likewise reject defendant's contention that the court erred in admitting into evidence a composite tape recording of various telephone calls made or received by defendant or codefendant.   Although the tape recording included conversations involving uncharged drug crimes, it was properly admitted to prove that defendant knowingly possessed over four ounces of cocaine with the intent to sell it (see, People v. Stephens, 209 A.D.2d 999, 619 N.Y.S.2d 445, lv. denied 84 N.Y.2d 1039, 623 N.Y.S.2d 195, 647 N.E.2d 467;  People v. Irizarry, 126 A.D.2d 982, 983, 511 N.Y.S.2d 758, affd. 70 N.Y.2d 816, 523 N.Y.S.2d 489, 518 N.E.2d 1).

The court failed, however, to sentence defendant properly as a second felony offender under counts two, nine, 10, 11, 12, 16 and 17 of the indictment (see, Penal Law § 70.06).   Because the sentences imposed on those counts are illegal, we modify the judgment by vacating those sentences and remitting the matter to Erie County Court for resentencing on those counts (see, People v. Sanchez, 244 A.D.2d 922, 668 N.Y.S.2d 125 ).   Finally, defendant's sentence is neither unduly harsh nor severe.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for resentencing.

MEMORANDUM: