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finding that after a Hinton hearing, defendant "clearly acquiesced in the court's determination to close the courtroom during the uncover officers' testimony" and that therefore his challenge to the ruling was unpreserved
Summary of this case from Cotto v. FischerOpinion
May 15, 2001.
Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered March 2, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 41/2 to 9 years, unanimously affirmed.
Kristin A. Kirk, for respondent.
Lisa Joy Robertson, for defendant-appellant.
Before: Rosenberger, J.P., Mazzarelli, Andrias, Buckley, Friedman, JJ.
Upon completion of the Hinton hearings, defendant clearly acquiesced in the court's determination to close the courtroom during the undercover officers' testimony. Thus, his present challenge to that ruling is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the testimony at the Hinton hearings was sufficient to establish a substantial probability that the officers' safety and effectiveness would be prejudiced by their testimony in open court (see, People v. Ayala, 90 N.Y.2d 490, 498-500 cert denied 522 U.S. 1002). Both officers expected to continue undercover operations in the vicinity of defendant's arrest in the near future, and both had open cases and lost subjects from the area. Furthermore, the officers, who had been threatened in the past in the area of defendant's arrest, took precautions to conceal their identity.
Defendant's remaining claims of deprivation of his right to a public trial are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court's ruling that defendant's family members could enter only upon submission to a screening procedure was not even a partial closure, since no one was excluded, and was in any event proper (People v. Perez, 245 A.D.2d 71,lv denied 91 N.Y.2d 976; see also, United States v. DeLuca, 137 F.3d 24, 32-35, cert denied 525 U.S. 874; United States v. Brazel, 102 F.3d 1120, 1155-1156, cert denied 522 U.S. 822), and we would also find that the brief exclusion of certain attorneys associated with counsel for the codefendant who sought entry in the midst of testimony did not implicate public trial concerns (People v. Colon, 71 N.Y.2d 410, 416, cert denied 487 U.S. 1239; People v. Glover, 60 N.Y.2d 783, 785, cert denied 466 U.S. 975; People v. Gutierez, 209 A.D.2d 217, revd on other grounds 85 N.Y.2d 938; see also, Bell v. Evatt, 72 F.3d 421, 433, cert denied 518 U.S. 1009).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.