People v. Brown

Judgment, Supreme Court, New York County (Edward Sheridan, J.), rendered April 6, 1994, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and seventh degrees, and sentencing him, as a second felony offender, to concurrent prison terms of 5 to 10 years and 1 year, respec*434lively, unanimously modified, on the law, to the extent of vacating the conviction of criminal possession of a controlled substance in the seventh degree, and dismissing that count of the indictment, and otherwise affirmed. Judgment of the same court and Justice rendered April 6, 1994, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, concurrent to the above sentences, unanimously affirmed.

Defendant effectively waived his rights under People v Antommarchi (80 NY2d 247; see, People v Davis, 194 AD2d 437, lv denied 82 NY2d 716). Moreover, since the prospective juror was disqualified by the court for cause, any benefit defendant could have claimed from his presence at the sidebar conference would have been "purely speculative”. Accordingly, defendant’s absence from the sidebar, even without the waiver, would not require reversal (People v Feliciano, 88 NY2d 18, 28).

The trial court did not improvidently exercise its discretion in prohibiting cross-examination of a police witness regarding arrests he made on dates other than the date of defendant’s arrest, since that would have distracted the jury from the relevant issues (People v Alston, 215 AD2d 108, lv denied 86 NY2d 732). As the People concede, defendant’s conviction of misdemeanor drug possession should have been dismissed as an inclusory concurrent count of criminal possession of a controlled substance in the third degree (CPL 300.40 [3] [b]; People v Gaul, 63 AD2d 563, lv denied 45 NY2d 780). Concur—Sullivan, J. P., Milonas, Rubin, Williams and Mazzarelli, JJ.