People v. Napoli

212 A.D.2d 1022, 624 N.Y.S.2d 1002, 1995 N.Y. App. Div. LEXIS 1899

Opinion

—Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that his absence from an in-chambers conference held prior to jury selection deprived him of the right to be present at a Ventimiglia hearing (see, People v Spotford, 196 AD2d 179, Iv granted 83 NY2d 915). The record fully supports Supreme Court’s determination, made after a reconstruction hearing, that the limited discussion at the in-chambers conference did not constitute a Ventimiglia hearing. Neither defendant nor the People made an application for a Ventimiglia ruling; no factual or legal arguments were made; and the court did not make an affirmative ruling (see, People v Odiat, 82 NY2d 872; People v Dokes, 79 NY2d 656; cf, People v Sanchez, 209 AD2d 1012; People v Spotford, supra).

Defendant failed to preserve for review the court’s failure to charge the jury that defendant’s knowledge of the weight of the controlled substance must be proven (see, CPL 470.05 [2]; People v Young, 209 AD2d 996; People v Mammarello, 209 AD2d 999), and we decline to reach it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Supreme Court, Monroe County, Mark, J.—Crim inal Sale Controlled Substance, 1st Degree.) Present—Lawton, J. P., Fallon, Wesley, Doerr and Boehm, JJ.