Opinion
May 31, 1996
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Green, J.P., Fallon, Wesley, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, of criminal possession of a controlled substance in the first and third degrees, arising from the discovery, pursuant to a search warrant, of nearly six kilograms of cocaine in a dresser in a room rented to defendant.
Supreme Court did not err in determining, following a reconstruction hearing, that defendant was present at the Sandoval conference, held in the courtroom in the absence of the court reporter ( see, People v. Terry, 225 A.D.2d 1058). Although the court reporter's notes indicate that the Judge and the attorneys left the courtroom after a bench conference and prior to jury selection, all of the witnesses at the reconstruction hearing agreed that defendant's outburst upon hearing the court's Sandoval ruling occurred in the courtroom. The testimony of the Assistant District Attorney and the fact that the outburst was not transcribed support the court's determination and, thus, that determination should not be disturbed ( see, People v. Michalek, 218 A.D.2d 750, lv denied 86 N.Y.2d 874).
We reject defendant's contention that the Sandoval ruling constituted an abuse of discretion. "The record establishes that, in considering defendant's Sandoval motion, the Trial Judge balanced the probative worth of the evidence against the risk of unfair prejudice to the defendant in accordance with People v Sandoval ( 34 N.Y.2d 371)" ( People v. Holman, 79 N.Y.2d 986, 987). The court did not err in failing to hold a Darden hearing ( see, People v. Darden, 34 N.Y.2d 177, rearg denied 34 N.Y.2d 995) because defendant did not request a hearing in his omnibus motion. Furthermore, defendant knew the identity of the informant ( see, People v. Brinson, 201 A.D.2d 945, 946, lv denied 83 N.Y.2d 849).
We also conclude that the court's charge concerning possession, viewed in its entirety, properly conveyed to the jury the appropriate standard and did not denigrate defendant's defense of involuntary possession ( see, People v. Moss, 205 A.D.2d 379, lv denied 84 N.Y.2d 938). In light of the amount of cocaine involved and the apparent pride of defendant in his status as a drug dealer, we conclude that the sentence is not unduly harsh or severe.