Opinion
November 15, 1995
Appeal from the Erie County Court, Rogowski, J.
Present — Pine, J.P., Fallon, Wesley, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of criminal possession of a controlled substance in the first degree (Penal Law § 220.21; § 20.00) and conspiracy in the second degree (Penal Law § 105.15).
The contention that the evidence is legally insufficient to prove defendant's knowledge of the weight of the controlled substance has not been preserved by a motion to dismiss "`specifically directed'" at the alleged defect in the proof (see, People v Gray, 86 N.Y.2d 10, 19, quoting People v Cona, 49 N.Y.2d 26, 33, n 2; see also, People v Cedeno, 219 A.D.2d 828), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
The contention that defendant was denied effective assistance of counsel is without merit (see, People v Hobot, 84 N.Y.2d 1021, 1022; People v Flores, 84 N.Y.2d 184). Equally lacking in merit is the contention that County Court erred in admitting into evidence certain audio tapes of conversations between the codefendant and a third person (see, People v Lubow, 29 N.Y.2d 58; People v Maderic, 142 A.D.2d 892). Defendant was not denied his right to be present at a material stage of the proceedings because he was not present at the audibility hearing regarding those tapes (cf., People v Dokes, 79 N.Y.2d 656, 659-660). Because defendant neither took part in nor witnessed the conversations that were taped, he had no "peculiar knowledge that would be useful in advancing defendant's or countering the People's position" (People v Dokes, supra, at 660). Moreover, the record does not show that defendant either requested an audibility hearing or objected to the admission of the tapes into evidence (see, People v Serrano, 170 A.D.2d 714, lv denied 77 N.Y.2d 967).
Defendant was not denied his constitutional (see, People v Taranovich, 37 N.Y.2d 442, 445) or statutory (see, People v Kendzia, 64 N.Y.2d 331, 337) right to a speedy trial.
Finally, we decline to vacate the verdict in the interest of justice as requested by defendant.