PEOPLE v. PEPE (1997)

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered on or about May 23, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously affirmed.

 The trial court properly exercised its discretion to close the courtroom during the undercover officer's testimony concerning the existence of 40 to 50 unresolved cases from the Manhattan South area where the undercover continued to participate in buy and bust operations (People v. Dones, 220 A.D.2d 267, 632 N.Y.S.2d 116, lv denied 87 N.Y.2d 900, 641 N.Y.S.2d 230, 663 N.E.2d 1260), and the officer feared for his safety based on a previous threat on his life (People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027).   Moreover, we find that the court properly took into consideration its personal observation that defendants from other pending narcotics cases, including one particular individual, were highly likely to be present in court (see, People v. Gross, 179 A.D.2d 138, 142, 583 N.Y.S.2d 832, lv. denied 80 N.Y.2d 832, 587 N.Y.S.2d 916, 600 N.E.2d 643).   To the extent that Ayala v. Speckard, 2nd Cir., 89 F.3d 91 might require a different result, we decline to follow that case (People v. Rivera, 237 A.D.2d 178, 654 N.Y.S.2d 771).

 The jury had ample basis upon which to reject defendant's testimony that he was merely acting as the undercover's agent in the underlying drug transaction.   Thus, the verdict was not based on insufficient evidence nor was it against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).

MEMORANDUM DECISION.