People v. Diaz

112 A.D.2d 311, 491 N.Y.S.2d 758, 1985 N.Y. App. Div. LEXIS 56615

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Ramirez, J.), rendered May 26, 1983, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The undercover police officer’s testimony that, upon his request to purchase cocaine from defendant, defendant instructed Ramon Beltre to "do him a dime of coke”, and that Beltre then removed a brown paper bag containing glassine envelopes of cocaine from a hole in the wall of the building a few feet away and sold $10 worth of cocaine to the undercover officer, was sufficient to establish defendant’s constructive possession of the cocaine (People v Holmes, 104 AD2d 1049). The jury was entitled to disbelieve the testimony of defendant’s former girlfriend that he was merely present when the police searched the hole and found the drugs.

The prosecutor’s request, made in open court in front of the jury, to close the courtroom for the undercover officer’s testimony, was highly improper but the court’s prompt instruction to the jury to disregard the remark was sufficient to cure the error. Therefore, it did not deprive defendant of a fair trial (People v Cuevas, 99 AD2d 553).

Defendant’s other objections are not preserved for review (CPL 470.05 [2]).

The sentence imposed was not excessive in view of defendant’s previous record of violent crimes. Lazer, J. P., Gibbons, Thompson and Kunzeman, JJ., concur.