Opinion
April 12, 1994
Appeal from the Supreme Court, New York County (Patricia Williams, J.).
Viewing the evidence in the light most favorable to the People (People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), it was established beyond a reasonable doubt that defendant knowingly sold a vial of crack cocaine to an undercover officer (see, People v Ryan, 82 N.Y.2d 497, 502). It was not necessary for the People to show that defendant sold any minimum amount of cocaine to establish his guilt of criminal sale in the third degree (People v Mizell, 72 N.Y.2d 651, 654-656; People v Diaz, 157 A.D.2d 531, lv denied 75 N.Y.2d 918).
Because the two prospective jurors that were questioned in defendant's absence were excused from the panel, no prejudice resulted from his absence (People v Perez, 196 A.D.2d 781; People v Mills, 200 A.D.2d 771). Likewise, defendant's presence was not mandated at a sidebar conference at which the attorneys merely argued, and the court determined, the legal issue of whether defendant's testimony had "opened the door" to cross-examination about a prior crime (see, People v Dokes, 79 N.Y.2d 656, 660). This evidence that defendant had also previously sold both a real and fake vial of crack cocaine was properly admitted to refute defendant's claim that he did not know that the substance in one of the two vials he sold was crack cocaine and to establish knowledge, and the absence of a mistake or accident.
We find the sentence excessive to the extent indicated.
Concur — Rosenberger, J.P., Ellerin, Kupferman, Ross and Rubin, JJ.