PEOPLE v. VALENTINE

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

The PEOPLE of the State of New York, Respondent, v. John VALENTINE, Defendant-Appellant.

Decided: May 06, 2004

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, FRIEDMAN, MARLOW, JJ. Andrew C. Fine, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), for respondent.

Judgment, Supreme Court, New York County (John E.H. Stackhouse, J.), rendered March 8, 2002, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.

 Defendant “has failed to meet his burden of coming forward with substantial evidence establishing his absence” (People v. Foster, 1 N.Y.3d 44, 48, 769 N.Y.S.2d 156, 801 N.E.2d 376) from part of his Sandoval hearing.   While defendant asserts that he was not produced in court until after a colloquy between the court and counsel had already turned to the Sandoval issue, the court reporter's notations relied upon by defendant fail to establish that claim, when those notations are read in the context of the entire conference record and the reasonable inferences that may be drawn therefrom.  “Reconstruction hearings should not be routinely ordered where, as here, the record is simply insufficient to establish facts necessary to meet the defendant's burden of showing that he was absent from a material stage of the trial” (People v. Foster, 1 N.Y.3d at 49, 769 N.Y.S.2d 156, 801 N.E.2d 376).

 The court properly admitted a calculator and $205, including $95 in single dollar bills, recovered from defendant, since this evidence was relevant to the central issue of the case, which was whether defendant was acting in concert with the other persons with whom he was arrested (cf. People v. Bowen, 203 A.D.2d 204, 611 N.Y.S.2d 9, lv. denied 83 N.Y.2d 964, 616 N.Y.S.2d 17, 639 N.E.2d 757;  see also People v. Carter, 77 N.Y.2d 95, 107, 564 N.Y.S.2d 992, 566 N.E.2d 119, cert. denied 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662).   The evidence in question tended to prove that defendant was a participant in a drug-selling operation with his companions, which included the two charged sales.

We have considered and rejected defendant's remaining contentions.