         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1259
KA 10-01870
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LASEAN J. BROWN, DEFENDANT-APPELLANT.


SCOTT T. GODKIN, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MATTHEW P. WORTH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered February 23, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree (two counts) and criminal sale of a
controlled substance in the third degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts each of criminal possession of a
controlled substance in the third degree (Penal Law § 220.16 [1]) and
criminal sale of a controlled substance in the third degree (§ 220.39
[1]). Inasmuch as the confidential informant involved in the drug
transactions giving rise to defendant’s conviction was identified and
testified at trial, defendant’s contention that County Court erred in
denying that part of his pretrial omnibus motion seeking disclosure of
the identity of the informant is academic (see People v Ingram, 217
AD2d 986, 987; see generally People v Goggins, 34 NY2d 163, 168-169,
cert denied 419 US 1012). We reject defendant’s further contention
that the court erred in denying that part of his omnibus motion
seeking a Darden hearing. Because the informant testified before the
grand jury and at trial, the objectives of a Darden hearing, i.e.,
confirmation that the informant existed and provided information to
the police concerning the drug sales at issue, were met (see People v
Kimes, 37 AD3d 1, 15-16, lv denied 8 NY3d 881, reconsideration denied
9 NY3d 846; see generally People v Wilson, 48 AD3d 1099, 1100, lv
denied 10 NY3d 845).

     We reject defendant’s contention that the court’s denial of his
challenge for cause to one of the prospective jurors requires reversal
(see CPL 270.20 [2]). Defendant did not use a peremptory challenge as
to the prospective juror at issue and did not exhaust all of his
                                 -2-                          1259
                                                         KA 10-01870

peremptory challenges before the completion of jury selection. Thus,
the court’s denial of defendant’s challenge is not a basis for
reversal (see CPL 270.20 [2]; People v Flocker, 223 AD2d 451, 452, lv
denied 88 NY2d 847). We note in any event that the prospective juror
at issue was not in fact seated as a juror. Finally, under the
circumstances of this case, we conclude that the court did not abuse
its discretion in denying defendant’s request, made on the morning
that the trial was scheduled to commence, for an adjournment to permit
his new attorney to prepare his defense (see People v Povio, 284 AD2d
1011, 1011, lv denied 96 NY2d 923). “[T]he right to counsel does not
include the right to delay” (People v Arroyave, 49 NY2d 264, 273
[internal quotation marks omitted]).

     We have reviewed defendant’s remaining contention and conclude
that it does not warrant reversal or modification of the judgment.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
