PEOPLE v. WILSON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Benjamin WILSON, Defendant-Appellant.

Decided: February 17, 1998

Before MILONAS, J.P., and ELLERIN, WILLIAMS and TOM, JJ. Peter Hinckley, for respondent. John H. Wilson, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Alfred Donati, J.), rendered February 16, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (2 counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

 Defendant was not denied his right to be present at material stages of the trial, since the bench conference at issue involved only a discussion of legal matters (People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293).   In any event, the record establishes that defendant knowingly and voluntarily waived his presence at the sidebar (see, People v. Spotford, 85 N.Y.2d 593, 597-598, 627 N.Y.S.2d 295, 650 N.E.2d 1296), notwithstanding his objection to the court's reasonable security procedures (see, People v. Vargas, 88 N.Y.2d 363, 376-377, 645 N.Y.S.2d 759, 668 N.E.2d 879;  People v. Bostic, 230 A.D.2d 804, 805, 646 N.Y.S.2d 819, lv. denied 89 N.Y.2d 919, 654 N.Y.S.2d 721, 677 N.E.2d 293).

 The court properly admitted evidence of an uncharged sale since it occurred contemporaneously with the charged sales and was relevant to whether defendant possessed the cocaine with intent to sell (People v. Abrams, 227 A.D.2d 293, 643 N.Y.S.2d 526, lv. denied 88 N.Y.2d 979, 649 N.Y.S.2d 386, 672 N.E.2d 612).   Moreover, this evidence was relevant for narrative purposes and to explain why the police officer's attention was focused on defendant (id.;  People v. Pressley, 216 A.D.2d 202, 628 N.Y.S.2d 682, lv. denied 86 N.Y.2d 800, 632 N.Y.S.2d 514, 656 N.E.2d 613).

 We perceive no abuse of sentencing discretion.

We have considered defendant's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.