People v. Contrero

• Decision Date: 08 October 1996
• Citation: People v. Contrero, 232 A.D.2d 213, 647 N.Y.S.2d 775 (N.Y. App. Div. 1996)
• Parties: The PEOPLE of the State of New York, Respondent, v. Antonio CONTRERO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 775

647 N.Y.S.2d 775

232 A.D.2d 213

The PEOPLE of the State of New York, Respondent, v.Antonio CONTRERO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 8, 1996.

Cristina A. Baiata, for Respondent.

Nancy E. Hood, for Defendant-Appellant.

Before ROSENBERGER, J.P., and ELLERIN, WILLIAMS, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County(Arlene Silverman, J.), rendered December 14, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously affirmed.

According due deference to the hearing court's findings of fact and credibility (People v. Rivera, 121 A.D.2d 166, 503 N.Y.S.2d 1, affd.68 N.Y.2d 786, 506 N.Y.S.2d 854, 498 N.E.2d 418), the testimony at the suppression hearing showed that, within minutes of an alleged drug sale, defendant was searched by the arresting officer for needles or weapons, items commonly associated with drug transactions and easily secreted in a waist pouch (see, People v. Smith, 59 N.Y.2d 454, 458-459, 465 N.Y.S.2d 896, 452 N.E.2d 1224).As there is no evidence that, at the time of the search, defendant's waist pouch was "safely in the possession of the arresting officer"(cf., People v. Rosado, 214 A.D.2d 375, 625 N.Y.S.2d 162, lv. denied86 N.Y.2d 740, 631 N.Y.S.2d 621, 655 N.E.2d 718), the search of the pouch was a proper search incident to arrest.

The record demonstrates that defendant made a knowing, intelligent and voluntary waiver of his right to be present at sidebar and robing room questioning of prospective jurors, both expressly and by subsequent failure to enter any objection when the court stated, on the record and in defendant's presence, the nature of the questions that would be asked (see, People v. Spotford, 85 N.Y.2d 593, 597-598, 627 N.Y.S.2d 295, 650 N.E.2d 1296).As a practical matter, responses to those questions, which might have prompted clarifying questions, did not exceed the scope of defendant's waiver (id., at 598-599, 627 N.Y.S.2d 295, 650 N.E.2d 1296).

The court's response to an individual juror's note involved a procedural question and the procedure utilized by the court in responding arose out of consultation with counsel.In any event, the court stated on the record, in open court and in defendant's presence, the nature of the individual juror's question and its response...