PEOPLE v. CORTIJO (1998)

Judgments, Supreme Court, New York County (Bruce Allen, J.), rendered against defendant Cortijo on April 24, 1995 and against defendants Saniel and Maturine on May 31, 1995, convicting each defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing defendants Cortijo and Maturine, as second felony offenders, to terms of 4 1/2 to 9 years, and sentencing defendant Saniel to a term of 1 to 3 years, unanimously affirmed.

 The court properly ordered closure of the courtroom to all but defendants' families following the undercover officer's testimony at the Hinton hearing that he made drug purchases in the same area where defendants were arrested, both before and after their arrests, remained active in the same area, had open cases there, had been threatened by people in other cases where he had testified, feared for his and his family's safety as well as for the integrity of future investigations and had made efforts to conceal his identity when coming to court (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. Eraso, 248 A.D.2d 243, 671 N.Y.S.2d 215.   Further, since defense counsel never suggested any alternatives to closure, the court was not required to do so (People v. Ayala, supra).

 The court properly admitted into evidence prerecorded buy money recovered from two of the defendants after their arrest since the People provided reasonable assurances of the money's identity and unchanged condition (People v. Julian, 41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310).   Defendants' speculative assertion that the money was commingled with buy money recovered from other suspects is unsupported by the record (see, People v. Canosa, 194 A.D.2d 392, 598 N.Y.S.2d 784, lv. denied 82 N.Y.2d 715, 602 N.Y.S.2d 812, 622 N.E.2d 313).   Moreover, reasonable assurances of identity existed since the record indicates continual police control over the evidence in question (People v. Murray, 191 A.D.2d 397, 595 N.Y.S.2d 205, lv. denied 82 N.Y.2d 723, 602 N.Y.S.2d 821, 622 N.E.2d 322;  see also, People v. Moore, 213 A.D.2d 352, 624 N.Y.S.2d 412, lv. denied 86 N.Y.2d 738, 631 N.Y.S.2d 619, 655 N.E.2d 716).

 Defendants' request for a missing witness charge with respect to a sergeant, who had custody of the buy money at the precinct and removed some of it before it was vouchered, was untimely (People v. Alamo, 202 A.D.2d 349, 609 N.Y.S.2d 227, lv. denied 84 N.Y.2d 822, 617 N.Y.S.2d 142, 641 N.E.2d 163).   In any event, since there was no indication that anything untoward happened to the buy money while it was in the sergeant's possession, there was no material issue about the chain of custody and the court properly denied defendants' request for a missing witness charge.

 Defendant's suppression motions were properly denied.   The arresting officer's testimony, taken as a whole, provided sufficient information as to the content of the radio transmission and established that the arrest took place within minutes of and at the location of the sale, so as to allow the hearing court to make an independent determination that the arrest was supported by probable cause (People v. Martinez, 245 A.D.2d 185, 665 N.Y.S.2d 889;  People v. Ward, 182 A.D.2d 573, 582 N.Y.S.2d 432, lv. denied 81 N.Y.2d 849, 595 N.Y.S.2d 748, 611 N.E.2d 787;  see also, People v. Brown, 238 A.D.2d 204, 656 N.Y.S.2d 262, lv. denied 90 N.Y.2d 1010, 666 N.Y.S.2d 104, 688 N.E.2d 1388;  CPL 710.60[4] ).

 The evidence was legally sufficient to establish beyond a reasonable doubt that defendant Maturine, who asked for, and received, a portion of the proceeds of the sale from his codefendants, then asked the seller if he was “out” and who was found in possession of some of the pre-recorded buy money, acted with his codefendants in the furtherance of the sale (see, People v. Hill, 198 A.D.2d 100, 603 N.Y.S.2d 829;  People v. Williams, 172 A.D.2d 448, 568 N.Y.S.2d 797, affd. 79 N.Y.2d 803, 580 N.Y.S.2d 188, 588 N.E.2d 86).   Moreover, the verdict was not against the weight of the evidence.

MEMORANDUM DECISION.