PEOPLE v. MULLIGAN (2002)

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered September 15, 1999, 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, as a second felony offender, to concurrent terms of 5 1/212 to 11 years, unanimously affirmed.

The court properly exercised its discretion in permitting the undercover officer to testify anonymously (see People v. Stanard, 42 N.Y.2d 74, 83-84, 396 N.Y.S.2d 825, 365 N.E.2d 857, cert. denied 434 U.S. 986, 98 S.Ct. 615, 54 L.Ed.2d 481;  People v. Kearse, 215 A.D.2d 104, 626 N.Y.S.2d 88, lv. denied 86 N.Y.2d 797, 632 N.Y.S.2d 510, 656 N.E.2d 609).   Since the record clearly establishes, as the result of the court's questioning of the prosecutor, that concerns for the officer's safety warranted maintaining her anonymity, and defendant did not challenge the People's factual claims, the court was not required to conduct an inquiry of the undercover officer herself, although that would have been the better practice (see People v. Melendez, 269 A.D.2d 292, 704 N.Y.S.2d 213, lv. denied 95 N.Y.2d 868, 715 N.Y.S.2d 223, 738 N.E.2d 371).   The court prevented any prejudice by instructing the jury not to draw any inference from the fact that the officer was being identified only by her shield number (see People v. Washington, 259 A.D.2d 365, 365-366, 688 N.Y.S.2d 125, lv. denied 93 N.Y.2d 1006, 695 N.Y.S.2d 753, 717 N.E.2d 1090).