PEOPLE v. LOPEZ (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered June 11, 2003, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, with costs.

 The trial court providently exercised its discretion in sealing the courtroom during the testimony of an undercover police officer (see People v. Pearson, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027).   The officer's testimony at the Hinton hearing (see People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265, cert. denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273) established a link between his fear for his safety and his open court testimony, in accordance with the criteria set forth in People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027.   The record reflects that the officer was still working in the area of the defendant's arrest, he expected to return to that locale, he had been threatened and assaulted, and he had several open cases involving lost subjects in that area.   Moreover, the evidence established that the spectators who were excluded from the courtroom resided in the locale where the undercover officer worked and were in court to observe a defendant involved in an unrelated drug matter that occurred in that area.   Therefore, the closure of the courtroom and exclusion of the two spectators were necessary to protect the safety of the undercover officer and preserve the integrity of his ongoing investigations (see People v. Pearson, supra;  People v. Hinton, supra;  People v. Akaydin, 258 A.D.2d 466, 685 N.Y.S.2d 737;  People v. Garcia, 239 A.D.2d 599, 658 N.Y.S.2d 365;  People v. Mitchell, 209 A.D.2d 444, 618 N.Y.S.2d 457).   Accordingly, the closure of the courtroom did not violate the defendant's right to a public trial (see People v. Pearson, supra ).

 The defendant's contention that the Supreme Court should have given a missing witness charge is unpreserved for appellate review since the specific arguments he now makes were not raised in the Supreme Court (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Porter, 268 A.D.2d 538, 701 N.Y.S.2d 649;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, the defendant did not establish his prima facie entitlement to the missing witness charge (see People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).   Although the primary undercover officer was at the scene of the incident and could have testified to the events leading up to another officer's encounter with the defendant and the defendant's apprehension, he would not have been able to describe the encounter itself since, as the record shows, the primary undercover officer was involved in the apprehension of another individual and was not present at the time of the apprehension of the defendant (see People v. Dianda, 70 N.Y.2d 894, 524 N.Y.S.2d 381, 519 N.E.2d 292;  People v. Aguaro, 241 A.D.2d 459, 663 N.Y.S.2d 973;  People v. Roberts, 201 A.D.2d 748, 608 N.Y.S.2d 485;  compare People v. Kitching, 78 N.Y.2d 532, 538, 577 N.Y.S.2d 231, 583 N.E.2d 944 [where police officer observed drug buy from across the street on a dark, snowy evening, what he actually saw and could have seen were questions he could have answered if he testified] ).