Opinion
September 10, 1998
Appeal from the Supreme Court, New York County (George Roberts, J., at pretrial motions; Alfred Donati, J., at jury trial and sentence).
The court properly denied, without a hearing, defendant's motion to suppress physical evidence. Defense counsel's affirmation failed to identify the source of information ( see, CPL 710.60), as well as failing to address the information available to defendant, including the felony complaint. Moreover, defendant did not avail himself of the opportunity provided by the court to correct these defects.
Defendant s contention that he was denied his right to be present at an unrecorded portion of the Sandoval discussion held at the bench is unreviewable for lack of an adequate record ( People v. Walker, 202 A.D.2d 312, lv denied 83 N.Y.2d 972). "Since the jury was not in the courtroom, it would be entirely speculative to conclude that the sidebar was conducted in a hushed dialogue out of defendant's hearing" ( People v. Gonzalez, 203 A.D.2d 192, lv denied 84 N.Y.2d 826). In any event, defendant's presence was superfluous because the court's ruling was "wholly favorable" to him ( People v. Favor, 82 N.Y.2d 254, 267), in that defendant received the specific relief he requested.
We perceive no abuse of sentencing discretion.
However, defendant's conviction on the fourth-degree possession count should be reversed and that count dismissed in light of the motion court's pretrial ruling reducing that count of the indictment to seventh-degree possession, which ruling apparently was overlooked at trial. Since criminal possession of a controlled substance in the seventh degree is a lesser included offense of criminal possession of a controlled substance in the third degree defendant's conviction of the greater precludes his conviction of the lesser count (CPL 1.20; 300.40 [3] [b]; see, Matter of Harry S., 236 A.D.2d 223).
Concur — Sullivan, J. P., Ellerin, Williams, Tom and Mazzarelli, JJ.