PEOPLE v. SLAUGHTER (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered May 25, 2004, convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, his absence from the Ventimiglia hearing (see People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59) does not warrant reversal.   The People sought to introduce evidence that the complaining witness had seen the defendant selling drugs on many occasions.   The Supreme Court ruled that the witness could not testify that he had observed the defendant selling drugs, but that he could testify he had seen the defendant hundreds of times outside his window, that the defendant had been making noise with a group of friends, and that the witness had asked him to move on.

The first part of the ruling was decided wholly in the defendant's favor (see People v. Favor, 82 N.Y.2d 254, 268, 604 N.Y.S.2d 494, 624 N.E.2d 631) and thus, the defendant's presence would not have contributed to the advancing of his case (see People v. Dokes, 79 N.Y.2d 656, 660, 584 N.Y.S.2d 761, 595 N.E.2d 836;  People v. Tellier, 232 A.D.2d 509, 648 N.Y.S.2d 659;  People v. Baum, 222 A.D.2d 444, 635 N.Y.S.2d 513).   The second part of the ruling involved a purely legal question of whether the witness' prior observations of the defendant could be admitted on the issue of identity (see People v. Dokes, supra at 660, 584 N.Y.S.2d 761, 595 N.E.2d 836).   Further, contrary to the defendant's contention, his conduct in making noise did not rise to the level of disorderly conduct (see Penal Law § 240.20[2];  People v. Bakolas, 59 N.Y.2d 51, 55, 462 N.Y.S.2d 844, 449 N.E.2d 738;  People v. Munafo, 50 N.Y.2d 326, 331, 428 N.Y.S.2d 924, 406 N.E.2d 780) or otherwise constitute a bad act.   Since the prospective use of prior bad acts of the defendant was not at issue during that portion of the hearing, the defendant's presence was not required (cf. People v. Spotford, 85 N.Y.2d 593, 597, 627 N.Y.S.2d 295, 650 N.E.2d 1296).