Opinion
2004-04907.
November 14, 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.
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel; Laura Holland on the brief), for respondent.
Before: Schmidt, J.P., S. Miller, Santucci and Spolzino, JJ., concur.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, his absence from the Ventimiglia hearing ( see People v. Ventimiglia, 52 NY2d 350) 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 NY2d 254, 268) and thus, the defendant's presence would not have contributed to the advancing of his case ( see People v. Dokes, 79 NY2d 656, 660; People v. Tellier, 232 AD2d 509; People v. Baum, 222 AD2d 444). 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). 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; People v. Bakolas, 59 NY2d 51, 55; People v. Munafo, 50 NY2d 326, 331) 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 NY2d 593, 597).