Opinion
(1638) KA 00-00088
December 21, 2001.
Appeal from Judgment of Monroe County Court, Bristol, J. — Criminal Sale Controlled Substance, 3rd Degree.)
PRESENT: HAYES, J.P., SCUDDER, BURNS, GORSKI AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant contends that the jury may have convicted him of unindicted offenses of criminal sale and criminal possession of a controlled substance in the third degree, requiring reversal. The evidence established only one sale of cocaine and thus only one instance of possession of cocaine, and we therefore conclude that there is no danger that defendant was convicted of unindicted offenses ( cf., People v. McNab, 167 A.D.2d 858). County Court properly denied defendant's request for a missing witness charge. Although the witness was knowledgeable about the offenses, she was not under the People's control ( see generally, People v. Gonzalez, 68 N.Y.2d 424, 427-428). Defendant further contends that reversal is required because the jury rendered its verdict in defendant's absence. Although defendant has a fundamental right to be present when the verdict is rendered ( see, CPL 310.40; People v. Febo, 210 A.D.2d 251, 252, lv denied 85 N.Y.2d 972; People v. Williams, 186 A.D.2d 161, 163), he forfeited that right by deliberately absenting himself while the jury was deliberating ( see, People v. Febo, supra, at 251-252). Finally, the sentence is neither unduly harsh nor severe.