Opinion
February 7, 2001.
Appeal from Judgment of Onondaga County Court, Burke, J. — Criminal Sale Controlled Substance, 1st Degree.
Pine, J. P., Hurlbutt, Scudder, Kehoe and Burns, JJ.
Judgment unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of various counts charging him with criminal possession and sale of controlled substances. The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).
County Court properly denied defendant's motion pursuant to CPL 440.10 seeking to vacate the judgment based on the prosecutor's failure to provide defendant with Rosario material, i.e., a diary kept by the informant. Contrary to defendant's contention, the diary is not Rosario material. The prosecutor learned of the existence of the diary, which was in North Carolina, during defendant's cross-examination of the informant, and thus, the diary was not "in or subject to the possession or control of the [prosecutor]" ( People v. Kelly, 88 N.Y.2d 248, 252; see, People v. Reedy, 70 N.Y.2d 826, 827).
We reject the contention of defendant that his counsel's statement to the court, in defendant's presence, that defendant did not wish to participate in sidebar conferences of potential jurors was an ineffective waiver of defendant's right to be present at those conferences ( cf., People v. Lucious, 269 A.D.2d 766, 768-769; see generally, People v. Vargas, 88 N.Y.2d 363, 375-376; People v. Kanner, 272 A.D.2d 866, 866-867, lv denied 95 N.Y.2d 867). We also reject defendant's contention that the People improperly exercised a peremptory challenge to remove an African-American woman as a prospective juror. Although defendant met his initial burden of demonstrating a prima facie case of discrimination, the prosecutor provided a facially neutral explanation ( see, People v. Allen, 86 N.Y.2d 101, 109-110) and the court's determination that the prosecutor's explanation was not pretextual is accorded great deference ( see, Hernandez v. New York, 500 U.S. 352, 364).
Contrary to defendant's contention, the court did not err in admitting evidence of an uncharged crime, i.e., the sale of cocaine to the informant by defendant and codefendant. The evidence was relevant on the issue of defendant's intent and its probative value exceeded its prejudicial effect in light of defendant's attempt to establish that the money paid to him by the informant was for the purchase of a car ( see, People v. Alvino, 71 N.Y.2d 233, 241-242).
Defendant's contentions that the court erred in failing to provide complete preliminary instructions to the jury and further erred in admitting the tape recordings in evidence are not preserved for our review (see, CPL 470.05) and in any event are without merit. We have considered defendant's remaining contention and conclude that it is without merit.