Opinion
2011-10-13
The PEOPLE of the State of New York, Respondent,v.Martin JOHNSON, Defendant–Appellant.
Office of the Appellate Defender, New York (Richard M. Greenberg of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered December 7, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony drug offender, to concurrent terms of 3 years, unanimously affirmed.
The People made a sufficiently particularized showing of an overriding interest justifying closure of the courtroom during the undercover officers' testimony, which included evidence that the officers expected to return to the vicinity of defendant's arrest for further undercover operations, that unapprehended subjects of investigations remained at large, that the officers had been threatened in other undercover investigations, and that the officers took precautions to conceal their identity ( see e.g. People v. Ramos, 90 N.Y.2d 490, 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] ). Instead of ordering a complete closure of the courtroom during the testimony of these officers, the Court permitted defendant's family to attend. Since defendant only challenged the sufficiency of the People's showing, he did not preserve his remaining arguments concerning the court's closure ruling ( see e.g. People v. Manning, 78 A.D.3d 585, 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] ), and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits ( see id.; see also 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] ).
Defendant's challenges to the prosecutor's summation and the court's charge do not warrant reversal.
We perceive no basis for reducing the sentence.
GONZALEZ, P.J., ANDRIAS, SAXE, SWEENY, JJ., concur.