Opinion
KA 00-02737.
November 21, 2003.
Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered October 6, 2000, and this Court on December 30, 2002, having entered an order holding the case, reserving decision and remitting the matter to Monroe County Court for further proceedings in accordance with the Memorandum ( 300 A.D.2d 1098) and said proceedings have been had and terminated.
Edward J. Nowak, Public Defender, Rochester (Shirley A. Gorman of Counsel), for Defendant-Appellant.
Howard R. Relin, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Lawton, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: We held this case, reserved decision and remitted this matter to County Court for a reconstruction hearing on the issue whether defendant was absent from sidebar conferences with prospective jurors ( People v. Allen, 300 A.D.2d 1098). Contrary to the contention of defendant, he "failed to meet his burden of coming forward with substantial evidence establishing his absence" from the sidebar conferences ( People v. Foster, 1 N.Y.3d 44, 48 [Oct. 23, 2003]; see People v. Jackson, 296 A.D.2d 658, 659, lv denied 98 N.Y.2d 768; People v. Mack, 293 A.D.2d 762, lv denied 98 N.Y.2d 699; People v. Bennett, 252 A.D.2d 369, lv denied 92 N.Y.2d 980). The testimony of the prosecutor and stenographer supports the court's finding that defendant was present during all sidebar conferences.
By presenting evidence after the court denied his motion to dismiss at the close of the People's case, defendant waived subsequent review of that determination, and defendant failed to renew the motion at the close of all the proof ( see People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678; People v. Zeigler, 305 A.D.2d 1100; People v. Montana, 298 A.D.2d 934, 935, lv denied 99 N.Y.2d 561). In any event, the evidence is legally sufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to the further contention of defendant, the court properly denied his request for a moral certainty charge ( see generally People v. Daddona, 81 N.Y.2d 990, 992). There was direct evidence of defendant's receipt of the prerecorded buy money for the drug sale ( see People v. Florez, 265 A.D.2d 491, lv denied 94 N.Y.2d 880), and a moral certainty charge is not required merely because the proof with respect to a particular element, such as intent, is wholly circumstantial ( see People v. Reynolds, 269 A.D.2d 735, 737, lv denied 95 N.Y.2d 888, cert denied 531 U.S. 945).