Opinion
2011-12-6
The PEOPLE of the State of New York, Respondent, v. Antwan O'CONNER, etc., Defendant–Appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David C. Borstein of counsel), for respondent.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David C. Borstein of counsel), for respondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered December 4, 2009, convicting defendant, after a jury trial, 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 six years, unanimously affirmed.
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including its resolution of inconsistencies in testimony.
The court properly closed the courtroom during an undercover officer's testimony ( 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] ). Instead of ordering a complete closure, the court permitted defendant's family and certain other persons to attend. In addition, it implicitly considered but rejected another alternative to closure proposed by defendant, and that determination was reasonable under the circumstances. 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], cert. denied ––– U.S. ––––, 132 S.Ct. 268, ––– L.Ed.2d ––––, 2011 WL 4534895, 2011 U.S. LEXIS 5278 [2011] ).