Opinion
February 5, 1993
Appeal from the Monroe County Court, Wisner, J.
Present — Callahan, J.P., Boomer, Pine, Fallon and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: The preliminary hearing testimony of Officer Wally Howard, who died before defendant's trial, was admissible at trial pursuant to CPL 670.10 (1). At the preliminary hearing, defendant was represented by counsel who was afforded the opportunity to cross-examine that witness adequately (see, People v Simmons, 36 N.Y.2d 126, 130). We do not agree with defendant's assertion that the City Court Judge unduly restricted his right to explore circumstances relevant to his entrapment defense by confining questioning to events that occurred at the time of the drug transaction itself (see, People v Arroyo, 54 N.Y.2d 567, cert denied 456 U.S. 979).
Defense witness Rahmaan should have been allowed to testify to a conversation between defendant and Officer Howard that took place immediately after the drug transaction. The conversation was relevant to show defendant's state of mind (see, People v Minor, 69 N.Y.2d 779; People v Black, 180 A.D.2d 806, lv denied 80 N.Y.2d 828; Richardson, Evidence § 288 [Prince 10th ed]). Nevertheless, defendant was permitted to testify to the entire conversation with Officer Howard. Consequently, any error in excluding Rahmaan's testimony was harmless. Although the court used language similar in import to the "`balancing of the scales'" language disapproved by this Court (People v Cooper, 147 A.D.2d 926, 927, lv denied 74 N.Y.2d 738), the charge as a whole conveyed the proper standard of proof to the jury (see, People v Hartle, 151 A.D.2d 1003, lv denied 74 N.Y.2d 810). We have examined defendant's remaining argument and find it to be without merit.