Opinion
2011-11-22
The PEOPLE of the State of New York, Respondent, v. Andrew MOSS, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Justin M. Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP, New York (Justin M. Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
MOSKOWITZ, J.P., RENWICK, DeGRASSE, ABDUS–SALAAM, ROMÁN, JJ.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J. at suppression hearing; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered February 9, 2009, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 10 years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, including its evaluation of the arresting officer's use of documents to refresh his recollection.
Defendant claims that the arresting officer, who testified to the detailed radioed description on which he relied, and then testified that defendant matched that description, was also required to testify as to defendant's actual appearance. Since defendant's arguments were insufficient to alert the court to that specific claim, it is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits ( see People v. Lewis, 37 A.D.3d 176, 177, 829 N.Y.S.2d 72 [2007], lv. denied 9 N.Y.3d 846, 840 N.Y.S.2d 773, 872 N.E.2d 886 [2007] ). The officer described defendant's appearance at the time of his arrest by incorporating by reference the detailed description he had just given.
The evidence at a Hinton hearing established an overriding interest that warranted closure of the courtroom ( see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 [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] ). The undercover officer testified that he continued to work in, among other places, the area of the sale, that he had pending cases connected with that area, that he had been threatened while working in the area, and that he took precautions when entering the courthouse to protect his identity.
Instead of ordering a complete closure, the court permitted defendant's family to attend. In addition, it considered but rejected an alternative to closure proposed by defendant. Accordingly, the court satisfied the Waller 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 ––– U.S. ––––, 132 S.Ct. 527, ––– L.Ed.2d ––––, 2011 WL 4384159, 2011 U.S. LEXIS 7608 [Oct. 31, 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] ).
The court properly exercised its discretion in denying defendant's midtrial motion for a severance. Defendant failed to demonstrate that, during trial, his defense and that of his codefendant had become so antagonistic as to require separate trials ( see People v. Cardwell, 78 N.Y.2d 996, 575 N.Y.S.2d 267, 580 N.E.2d 753 [1991]; People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ). The codefendant's testimony was favorable to defendant, and defendant's argument that this testimony did more harm than good is speculative.
Defendant's claims regarding the prosecutor's summation and the court's interested witness charge are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.