THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LASEAN BROWN DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LASEAN J. BROWN, DEFENDANT–APPELLANT.

KA 10–01870

Decided: December 21, 2012

PRESENT:  SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ. SCOTT T. GODKIN, UTICA, FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MATTHEW P. WORTH OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal sale of a controlled substance in the third degree (§ 220.39[1] ).   Inasmuch as the confidential informant involved in the drug transactions giving rise to defendant's conviction was identified and testified at trial, defendant's contention that County Court erred in denying that part of his pretrial omnibus motion seeking disclosure of the identity of the informant is academic (see People v. Ingram, 217 A.D.2d 986, 987;  see generally People v. Goggins, 34 N.Y.2d 163, 168–169, cert denied 419 U.S. 1012).   We reject defendant's further contention that the court erred in denying that part of his omnibus motion seeking a Darden hearing.   Because the informant testified before the grand jury and at trial, the objectives of a Darden hearing, i.e., confirmation that the informant existed and provided information to the police concerning the drug sales at issue, were met (see People v. Kimes, 37 AD3d 1, 15–16, lv denied 8 NY3d 881, reconsideration denied 9 NY3d 846;  see generally People v. Wilson, 48 AD3d 1099, 1100, lv denied 10 NY3d 845).

We reject defendant's contention that the court's denial of his challenge for cause to one of the prospective jurors requires reversal (see CPL 270.20 [2] ).   Defendant did not use a peremptory challenge as to the prospective juror at issue and did not exhaust all of his peremptory challenges before the completion of jury selection.   Thus, the court's denial of defendant's challenge is not a basis for reversal (see CPL 270.20[2];  People v. Flocker, 223 A.D.2d 451, 452, lv denied 88 N.Y.2d 847).   We note in any event that the prospective juror at issue was not in fact seated as a juror.   Finally, under the circumstances of this case, we conclude that the court did not abuse its discretion in denying defendant's request, made on the morning that the trial was scheduled to commence, for an adjournment to permit his new attorney to prepare his defense (see People v. Povio, 284 A.D.2d 1011, 1011, lv denied 96 N.Y.2d 923).  “[T]he right to counsel does not include the right to delay” (People v. Arroyave, 49 N.Y.2d 264, 273 [internal quotation marks omitted] ).

We have reviewed defendant's remaining contention and conclude that it does not warrant reversal or modification of the judgment.

Frances E. Cafarell

Clerk of the Court