Opinion
February 24, 2000
Judgment, Supreme Court, Bronx County (Alexander Hunter, J.), rendered May 1, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, 5 to 10 years and 1 year, respectively, unanimously affirmed.
Heather Kenney for the Respondent,
Elon Harpaz for the Defendant-Appellant.
SULLIVAN, P.J., NARDELLI, WALLACH, LERNER, BUCKLEY, JJ.
Defendant did not preserve his present challenges to the court's ruling made pursuant to Batson v. Kentucky ( 476 U.S. 79), and we decline to review them in the interest of justice. Were we to review these claims, we would find the ruling to be proper. A fair reading of the record as a whole establishes that the court correctly withdrew its preliminary finding of prima facie racial discrimination and declined to rule on the ultimate issue of intentional discrimination (see, People v. Ocasio, 253 A.D.2d 720, lv denied 92 N.Y.2d 1036). "[A]s clearly no third-step determination was required, none was in fact ever rendered" (People v. Durant, 250 A.D.2d 698, 699). Even were we to read the court's observations concerning the adequacy of the prosecutor's explanation for the peremptory challenge at issue as a "preliminary third-step finding that the prosecutor had used one of [his] strikes improperly", this "did not prohibit it from reconsidering its ruling upon a determination that no facts and circumstances sufficient to raise an inference of discrimination had been shown." (id.).
The court's partial closure of the courtroom during the testimony of the undercover officer, after considering a possible alternative and permitting the presence of defendant's wife, the only person defense counsel expected to enter the courtroom, was a proper exercise of discretion. Since the court's inquiry of the prosecutor, which produced specific geographical information as to the undercover officer's continuing operations, was sufficient to establish a basis for the closure, the court was not required to conduct an inquiry of the undercover officer herself (compare,People v. Tolentino, 90 N.Y.2d 867). Moreover, no such inquiry was requested (see, People v. Gross, 179 A.D.2d 138, 140, lv denied 80 N.Y.2d 832).
Since defendant's challenge to the court's Allen charge (Allen v. United States, 164 U.S. 492) was on different grounds, his present claim that it obligated jurors favoring acquittal to articulate the bases for their doubts and thereby shifted the burden of proof (see, People v. Antommarchi, 80 N.Y.2d 247, 251-253) is unpreserved and we decline to review it in the interest of justice. We have considered and rejected defendant's remaining challenges to the court's Allen charge.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.