Opinion
May 31, 1991
Appeal from the Supreme Court, Kings County (De Lury, J.).
Ordered that the judgment is affirmed.
The defendant was arrested for selling two vials of crack-cocaine to an undercover police officer in a "buy and bust" drug operation. On appeal, the defendant contends that the court committed several errors which deprived him of his due process right to a fair trial. He complains that his right to be present at all material stages of the proceedings against him was violated when the court held a hearing, in his absence, to determine whether the courtroom should be closed during an undercover police officer's testimony. The defendant failed to preserve this error for appellate review, by either stating a specific or timely objection to the closing of the courtroom or by moving for a mistrial (see, CPL 470.05; People v Miller, 257 N.Y. 54, 60-61; People v Baez, 162 A.D.2d 602, lv denied 76 N.Y.2d 852).
Moreover, the closure hearing did not constitute a material stage of the trial during which the defendant's presence was required in order to safeguard his constitutional and statutory rights (see, People v Mullen, 44 N.Y.2d 1, 4-5, citing Snyder v Massachusetts, 291 U.S. 97, 108). It is settled that a defendant's presence may be dispensed with during purely ministerial proceedings, wholly unrelated to the substantive legal or factual issues of the trial (see, People v Velasco, 77 N.Y.2d 469; People v Harris, 76 N.Y.2d 810, 812; People v Rodriguez, 76 N.Y.2d 918; People v Ferguson, 67 N.Y.2d 383), or in situations where his presence would be "useless, or the benefit but a shadow" (Snyder v Massachusetts, supra, at 106-107). The purpose of the proceeding at issue was merely to take general testimony from the undercover police officer, in order to make the procedural determination regarding whether the courtroom should be open or closed when he subsequently testified before the jury. Both counsel were present at the hearing and no testimony relevant to the specific transactions at issue was elicited. Consequently, the defendant's due process rights were not implicated and his absence from the hearing did not prejudice him in any measurable way (People v Davis, 173 A.D.2d 634).
The defendant also claims that he was denied a fair trial by the court's reversal of its Sandoval ruling. Initially, the court precluded all interrogation concerning the defendant's prior convictions. Relying on this ruling, the defendant decided to testify in his own defense. The court then reversed itself and permitted limited cross-examination on these offenses, on the basis that the defendant had opened the door by testifying as to his good character. The record reveals that the defendant did, in fact, put his character in issue, and the court did not err, then, by allowing the limited cross-examination (see, CPL 60.40; People v Morgan, 171 A.D.2d 672; People v Rios, 166 A.D.2d 616; People v McCullough, 141 A.D.2d 856, 858).
Finally, the defendant's contention that he was prejudiced by the court's refusal to give an agency instruction also lacks merit. There was no reasonable view of the evidence that the defendant acted as a mere instrumentality (or extension) of the undercover-buyer, rather than as the active "seller" of two vials of crack-cocaine. Hence, an agency instruction was not warranted (see, People v Argibay, 45 N.Y.2d 45, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 U.S. 930; People v Lam Lek Chong, 45 N.Y.2d 64, cert denied 439 U.S. 935; People v Roche, 45 N.Y.2d 78, cert denied 439 U.S. 958; People v Beyda, 170 A.D.2d 612; People v White, 149 A.D.2d 548). Brown, J.P., Sullivan, Lawrence and Ritter, JJ., concur.