Opinion
2012-04-10
The PEOPLE of the State of New York, Respondent, v. Michael SPEARS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Judgment, Supreme Court, New York County, (Arlene D. Goldberg, J.), rendered December 3, 2009, as amended January 19, 2010, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the first degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to an aggregate term of 18 years, unanimously affirmed.
Before ordering closure of the courtroom during an undercover officer's testimony, the court implicitly considered but rejected an alternative to closure proposed by defendant, and the court's ruling was reasonable under the circumstances ( see e.g. People v. Sweeney, 25 A.D.3d 335, 336, 808 N.Y.S.2d 637 [2006] ). Accordingly, the court satisfied the requirement of considering alternatives to full closure ( see Presley v. Georgia, 558 U.S. ––––, ––––, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 [2010]; People v. Mickens, 82 A.D.3d 430, 917 N.Y.S.2d 630 [2011], lv. denied 17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101 [2011], cert. denied 565 U.S. ––––, 132 S.Ct. 527, 181 L.Ed.2d 370 [2011]; People v. Manning, 78 A.D.3d 585, 586, 912 N.Y.S.2d 183 [2010], lv. denied 16 N.Y.3d 861, 923 N.Y.S.2d 422, 947 N.E.2d 1201 [2011], cert. denied 565 U.S. ––––, 132 S.Ct. 268, 181 L.Ed.2d 158 [2011] ).
Defendant did not preserve his present claim that closure of the courtroom to the general public was unwarranted, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits ( see Waller v. Georgia, 467 U.S. 39, 81 L.Ed.2d 31 104 S.Ct. 2210 [1984]; People v. Ramos, 90 N.Y.2d 490, 497, 662 N.Y.S.2d 739, 685 N.E.2d 492 [1997], cert. denied sub nom. Ayala v. New York, 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413 [1997] ).
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters outside the record concerning counsel's reasons for making a particular strategic choice ( see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards ( see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Defendant has not shown that the single error he alleges deprived him of a fair trial or affected the outcome of the case ( see Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674).
We perceive no basis for reducing the sentence.