Opinion
October 20, 1997
Appeal from the Supreme Court, Kings County (Koch, J.).
Ordered that the judgment and the order are affirmed.
The defendant was arrested for selling four vials of crack cocaine to an undercover officer during a buy-and-bust operation on the corner of Knickerbocker Avenue and Melrose Street in the Bushwick section of Brooklyn. Contrary to the defendant's contention, there was sufficient evidence to justify closing the courtroom during the testimony of the undercover officer who purchased the drugs. At a hearing conducted pursuant to People v Hinton ( 31 N.Y.2d 71, cert denied 410 U.S. 911), the officer testified that she was actively involved in undercover drug sales on a daily basis in the neighborhood where the defendant was arrested. She also described the precautions she took to protect her anonymity and insisted that her life would be in jeopardy if her identity became known. Under these circumstances, the trial court did not improvidently exercise its discretion in closing the courtroom while the undercover officer was on the witness stand ( see People v. Ayala, 90 N.Y.2d 490; People v. Cebeda, 211 A.D.2d 729; People v. Hill, 209 A.D.2d 433; People v. Jamison, 203 A.D.2d 386).
The defendant's further contention that the court erred in its charge on reasonable doubt is unpreserved for appellate review ( see, CPL 470.05). In any event, the challenged language was specifically approved by the Court of Appeals in People v. Cubino ( 88 N.Y.2d 998).
Turning to the defendant's motion pursuant to CPL 440.10 (1) (g) to vacate the judgment, we agree with the Supreme Court that the defendant failed to meet his burden of demonstrating that the evidence could not have been produced at the trial with due diligence or that the evidence was such that it would probably change the result if a new trial were granted ( see, People v Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950; People v. Aulla, 207 A.D.2d 497, 498; People v. Penoyer, 135 A.D.2d 42, 44, affd 72 N.Y.2d 936; People v. Latella, 112 A.D.2d 321, 322).
O'Brien, J.P., Thompson, Santucci and Joy, JJ., concur.