Opinion
5678
December 20, 2001.
Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered October 21, 1998, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 7½ to 15 years, unanimously affirmed.
PETER A. SELL, for respondent.
PAUL WIENER, for defendant-appellant.
Before: Rosenberger, J.P., Tom, Andrias, Ellerin, Wallach, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The totality of the evidence warranted the conclusion that defendant was a participant in the sale (see, People v. Bello, 92 N.Y.2d 523). When the undercover officer inquired about a particular brand of heroin, defendant's response that he had a different brand clearly meant, in context, that defendant was offering that brand for sale.
The record fails to support defendant's contention that the court improvidently and summarily refused to accept defendant's waiver of his right to be present at robing room conferences with prospective jurors. Unlike the situation in People v. Janvier ( 92 N.Y.2d 993), the court did not foreclose the possibility of a waiver of the right to be present, but merely expressed its strong opinion that it would be in defendant's best interests to attend the conferences, whereupon defendant acquiesced in the court's position (cf., People v. Pressley, 216 A.D.2d 202, lv denied 86 N.Y.2d 800).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.