Opinion
May 31, 1994
Appeal from the Supreme Court, Queens County (Appelman, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
In addition, the defendant's claim that he was denied his constitutional and statutory right to be present at a material stage of the trial is without merit. In response to a note from the jurors, the court directed that they should continue deliberating until about 6:00 P.M., and that they should not worry about meals and accommodations for the night. The defendant was not present at this time. In these circumstances, however, his presence was not required. The court's statement did not constitute a legal instruction, such as an Allen charge, which would have required the defendant's presence (cf., People v Torres, 72 N.Y.2d 1007; People v. Bonilla, 186 A.D.2d 748). Thompson, J.P., Rosenblatt, Pizzuto and Florio, JJ., concur.