Opinion
July 8, 1991
Appeal from the County Court, Nassau County (Delin, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, under the circumstances of this case the trial court properly allowed the introduction of evidence of other uncharged drug sales in order to establish the defendant's intent and predisposition to commit the crime so as to refute the agency and entrapment defenses raised by the defendant (see, People v Calvano, 30 N.Y.2d 199, 205-206; People v Crandall, 67 N.Y.2d 111, 118; People v Allweiss, 48 N.Y.2d 40, 47; People v Mann, 31 N.Y.2d 253, 260-261). Moreover, the court properly charged the jury as to the limited use of the evidence of uncharged crimes.
In addition, evidence of overt acts not specifically listed in the indictment was properly admitted to establish the defendant's guilt of the crime of conspiracy in the second degree (see, e.g., People v Bongarzone, 116 A.D.2d 164, 171, affd 69 N.Y.2d 892). We note in particular that those overt acts fell within the time period specified in the indictment and that at no time did the defendant request a bill of particulars (see, People v Mackey, 49 N.Y.2d 274, 278; People v Fitzgerald, 45 N.Y.2d 574, 578-579; People v Iannone, 45 N.Y.2d 589, 596-601; People v Bongarzone, supra; People v Lakomec, 86 A.D.2d 77, 79).
With regard to the rebuttal evidence establishing the defendant's involvement in other drug sales and that drug paraphernalia was found in the defendant's apartment, we observe initially that the defendant's claim has not been preserved for appellate review (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245, 248-252). In any event, the evidence was properly admitted to rebut the defendant's affirmative claims that he knew nothing about drugs, that he never sold drugs, and that the evidence against him was fabricated (see, People v Alvino, 71 N.Y.2d 233, 245-248; People v Harris, 57 N.Y.2d 335, 345, cert denied 460 U.S. 1047; People v Roccaforte, 141 A.D.2d 775, 776; see also, People v Gonzalez, 161 A.D.2d 798).
Finally, we reject the defendant's contention that the court erred in granting his request to proceed pro se when he took the witness stand. When the defendant asked to proceed pro se, the court conducted an extensive inquiry and advised the defendant of his right to do so, but warned him forcefully that he lacked legal training and would be at a disadvantage. In addition, the court insured that the defendant consulted with counsel in making his decision and gave the defendant several opportunities to reconsider. Moreover, the defendant's attorney was directed to remain on hand as a legal advisor; and, after the defendant left the stand, he chose to have counsel represent him for the remainder of the trial. Under the circumstances, the trial did not err in allowing the defendant to proceed pro se (see, People v Vivenzio, 62 N.Y.2d 775, 776; People v Landy, 59 N.Y.2d 369, 377; People v Allah, 150 A.D.2d 381; People v Williams, 143 A.D.2d 959; cf., People v Derrick, 96 A.D.2d 600; People v Harris, 85 A.D.2d 742, 744, affd 58 N.Y.2d 704). Mangano, P.J., Lawrence, Eiber and Balletta, JJ., concur.