PEOPLE v. HOOK (1998)

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered March 11, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him to concurrent terms of 3 to 9 years, unanimously affirmed.

 Considering the totality of the circumstances, defendant's allegations that trial counsel failed to effectuate his right to testify before the Grand Jury and failed to make a timely and complete dismissal motion pursuant to CPL 190.50(5)(c) would not constitute ineffective assistance of counsel (see, People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845;  People v. Helm, 51 N.Y.2d 853, 854-855, 433 N.Y.S.2d 757, 413 N.E.2d 1172;  People v. Lasher, 199 A.D.2d 595, 605 N.Y.S.2d 973, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987).   Moreover, defendant has not demonstrated that the result of the Grand Jury proceeding would have been different had defendant testified (see, People v. Cipolla, 171 A.D.2d 557, 558, 567 N.Y.S.2d 650, lv. denied 78 N.Y.2d 921, 573 N.Y.S.2d 473, 577 N.E.2d 1065).   In any event, the record demonstrates that defendant's inability to testify was not due to counsel's failure to appear but rather defendant's own conduct.

 The undercover officer's Hinton hearing testimony that she had conducted previous drug purchases in the very area where defendant had been arrested and that she would return to that location the next month, as well as the fact that threats had been made on her life and she made an effort to disguise herself, warranted closure of the courtroom during that undercover officer's testimony (see, People v. Ayala, 90 N.Y.2d 490, 662 N.Y.S.2d 739, 685 N.E.2d 492, cert. denied 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413;  People v. Martinez, 82 N.Y.2d 436, 443, 604 N.Y.S.2d 932, 624 N.E.2d 1027;  People v. Mensah, 226 A.D.2d 161, 640 N.Y.S.2d 513, lv. denied 88 N.Y.2d 989, 649 N.Y.S.2d 396, 672 N.E.2d 622).

MEMORANDUM DECISION.