People v. Brown

Dec 21, 2012
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Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of criminal possession ‍​​​​​‌‌​​‌​‌​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌‌‌‌​‌‌​‌​​‌​​​​​‌​​​‌‌​‌‌​‌​​‌‌‌‌​‌​‌​​​​‌‌‌​​​​​​​​​​​‌​‌‌‌‍of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal sale of a controlled substance in the third degree (§ 220.39 [1]). Inasmuch as the confidential informant involved in the drug transactions giving rise to defendant‘s conviction was identified and testified at trial, defendant‘s contention that County Court erred in denying that part of his pretrial omnibus motion seeking disclosure of the identity of the informant is academic (see People v Ingram, 217 AD2d 986, 987 [1995]; see generally People v Goggins, 34 ‍​​​​​‌‌​​‌​‌​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌‌‌‌​‌‌​‌​​‌​​​​​‌​​​‌‌​‌‌​‌​​‌‌‌‌​‌​‌​​​​‌‌‌​​​​​​​​​​​‌​‌‌‌‍NY2d 163, 168-169 [1974], cert denied 419 US 1012 [1974]). We reject defendant‘s further contention that the court erred in denying that part of his omnibus motion seeking a Darden hearing. Because the informant testified before the grand jury and at trial, the objectives of a Darden hearing, i.e., confirmation that the informant existed and provided information to the police concerning the drug sales at issue, were met (see People v Kimes, 37 AD3d 1, 15-16 [2006], lv denied 8 NY3d 881 [2007], reconsideration denied 9 NY3d 846 [2007]; see generally People v Wilson, 48 AD3d 1099, ‍​​​​​‌‌​​‌​‌​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌‌‌‌​‌‌​‌​​‌​​​​​‌​​​‌‌​‌‌​‌​​‌‌‌‌​‌​‌​​​​‌‌‌​​​​​​​​​​​‌​‌‌‌‍1100 [2008], lv denied 10 NY3d 845 [2008]).

We reject defendant‘s contention that the court‘s denial of his challenge for cause to one of the prospective jurors requires reversal (see CPL 270.20 [2]). Defendant did not use a peremptory challenge as to the prospective juror at issue and did not exhaust all of his peremptory challenges before the completion of jury selection. Thus, the court‘s denial of defendant‘s challenge is not a basis for reversal (see CPL 270.20 [2]; People v Flocker, 223 AD2d 451, 452 [1996], lv denied 88 NY2d ‍​​​​​‌‌​​‌​‌​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌‌‌‌​‌‌​‌​​‌​​​​​‌​​​‌‌​‌‌​‌​​‌‌‌‌​‌​‌​​​​‌‌‌​​​​​​​​​​​‌​‌‌‌‍847 [1996]). We note in any event that the prospective juror at issue was not in fact seated as a juror. Finally, under the circumstances of this case, we conclude that the court did not abuse its discretion in denying defendant‘s request, made on the morning that the trial was scheduled to commence, for an adjournment to permit his new attorney to prepare his defense (see People v Povio, 284 AD2d 1011, 1011 [2001], lv denied 96 NY2d 923 [2001]). “[T]he right to counsel does not ‍​​​​​‌‌​​‌​‌​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌‌‌‌​‌‌​‌​​‌​​​​​‌​​​‌‌​‌‌​‌​​‌‌‌‌​‌​‌​​​​‌‌‌​​​​​​​​​​​‌​‌‌‌‍include the right to delay” (People v Arroyave, 49 NY2d 264, 273 [1980] [internal quotation marks omitted]).

We have reviewed defendant‘s remaining contention and conclude that it does not warrant reversal or modification of the judgment. Present—Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.