Opinion
7079 7080 Ind. 3051/12
07-10-2018
The PEOPLE of the State of New York, Respondent, v. Johnny RODRIGUEZ, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Ondrej Staviscak Diaz of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent. Johnny Rodriguez, appellant pro se.
Rosemary Herbert, Office of the Appellate Defender, New York (Ondrej Staviscak Diaz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Johnny Rodriguez, appellant pro se.
Friedman, J.P., Gische, Kahn, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 24, 2013, as amended August 13, 2013, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the first degree (two counts), criminal sale of a controlled substance in the second degree (four counts), criminal sale of a controlled substance in the third degree (15 counts), criminal possession of a controlled substance in the third and fourth degrees, criminal possession of a weapon in the second degree, criminal sale of a firearm in the third degree, attempted criminal possession of a weapon in the second and third degrees, attempted criminal sale of a firearm in the third degree, resisting arrest, and two counts of criminally using drug paraphernalia in the second degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 30 years to life, and order (same court and Justice), entered on or about September 27, 2016, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.The evidence at a Hinton hearing established an overriding interest that warranted a limited closure of 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] ), and the closure did not violate defendant's right to a public trial. The evidence established that the officer had investigations pending, had received threats, was likely to return to the area of the sales at issue because of his wide-ranging activities, and was specifically likely to operate at a housing complex that is a short distance from the location of many of the charged sales. The court also considered special factors such as the officer's distinctive appearance, which made him especially prone to being recognized, and the courtroom's location, which created a heightened likelihood that the officer might encounter persons involved with drugs (see People v. Pepe, 235 A.D.2d 221, 653 N.Y.S.2d 101 [1st Dept. 1997], lv denied 89 N.Y.2d 1039, 659 N.Y.S.2d 870, 681 N.E.2d 1317 [1997] ; People v. Gross, 179 A.D.2d 138, 142, 583 N.Y.S.2d 832 [1st Dept. 1992], lv denied 80 N.Y.2d 832, 587 N.Y.S.2d 916, 600 N.E.2d 643 [1992] ). A fair reading of the record indicates that the court implicitly or explicitly considered alternatives to full closure (see Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 [2010] ; People v. Echevarria, 21 N.Y.3d 1, 14–19, 966 N.Y.S.2d 747, 989 N.E.2d 9 [2013] ).
Defendant's argument regarding an adverse inference charge is similar to an argument this Court rejected on a codefendant's appeal (People v. Reyes, 149 A.D.3d 478, 49 N.Y.S.3d 890 [1st Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ). This Court has rejected similar arguments in other cases (see e. g. People v. Austin, 134 A.D.3d 559, 23 N.Y.S.3d 17 [1st Dept. 2015], revd on other grounds 30 N.Y.3d 98, 64 N.Y.S.3d 650, 86 N.E.3d 542 [2017] ).
We have considered and rejected defendant's pro se ineffective assistance of counsel claim (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for reducing the sentence.