People v. Birdell

—Judgment, Supreme Court, New York County (Bernard Fried, J., at suppression hearing; John Bradley, J., at jury trial and sentence), rendered May 15, 1989, convicting defendant of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, and sentencing him to concurrent indeterminate terms of imprisonment of from 2 to 6 years, unanimously affirmed. On July 12, 1988, the defendant gave an undercover officer two glassine envelopes of heroin in exchange for $20 in prerecorded money. The exchange took place in a store known as the "Tribes”. Although the defendant has a right to be present at all material stages of his trial (People v Cain, 76 NY2d 119), it is 365 not necessary that a defendant be present when what transpires concerns only a minor procedural matter, not affecting any substantial right of the defendant. (People v Sterling, 141 AD2d 680, lv denied 73 NY2d 790.) The colloquy here, concerning various scheduling matters, and an admonition not to discuss the case, falls into this latter category. The court properly exercised its discretion in sentencing the defendant, based upon the defendant’s involvement in a sophisticated and well organized narcotics operation. Concur— Sullivan, J. P., Carro, Wallach and Rubin, JJ.