Opinion
January 10, 1995
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
The verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490). The issue of credibility was properly placed before the jury, and we see no reason to disturb its findings. Uncharged contemporaneous sales were properly admitted to prove possession with intent to sell, notwithstanding the presence of other evidence bearing on intent (People v. Alvino, 71 N.Y.2d 233, 245). While it would have been preferable for the court to have given a limiting instruction, as requested, immediately after receiving the uncharged crimes evidence, and to have included, as requested, specific language prohibiting the jury from considering criminal propensity (People v. Williams, 50 N.Y.2d 996, 998), the court's final charge, read as a whole, conveyed the appropriate standard (People v. Canty, 60 N.Y.2d 830, 831-832).
Defendant's challenge to certain language in the court's identification charge is unpreserved and without merit.
Defendant's claim that he was denied his right to be present at unrecorded portions of the Sandoval proceeding 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. )
We perceive no abuse of discretion in the sentencing court's determination not to have the sentences imposed herein run concurrently with that imposed in an unrelated Kings County matter.
Concur — Kupferman, J.P., Ross, Rubin and Williams, JJ.