PEOPLE v. ORTIZ (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Curci, J.), rendered September 12, 1995, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court did not err when, prior to the commencement of deliberations, it replaced juror number three with an alternate upon the express, open, in-court consent of both the defendant and his counsel (see, People v. Joy, 206 A.D.2d 440, 616 N.Y.S.2d 194;  People v. Heredia, 196 A.D.2d 885, 602 N.Y.S.2d 164;  CPL 270.35;  cf., People v. Page, 88 N.Y.2d 1, 643 N.Y.S.2d 1, 665 N.E.2d 1041).

 The defendant failed to preserve for appellate review the claim that his constitutional and statutory right to a public trial was violated when the Supreme Court closed the courtroom during the testimony of an undercover police officer (see, CPL 470.05[2];  People v. Brathwaite, 240 A.D.2d 419, 658 N.Y.S.2d 1006).   In any event, based on the evidence adduced at the Hinton hearing, closure of the courtroom was proper (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;  People v. Ayala, 90 N.Y.2d 490, 662 N.Y.S.2d 739, 685 N.E.2d 492;  People v. Clemons, 78 N.Y.2d 48, 571 N.Y.S.2d 433, 574 N.E.2d 1039;  People v. Reece, 204 A.D.2d 495, 612 N.Y.S.2d 61).   We note that the defendant's niece, the sole family member to attend the trial regularly, was permitted to remain in the courtroom.

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.