PEOPLE v. SEVENCAN (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rappaport, J.), rendered September 21, 1993, convicting him of criminal sale of a controlled substance in the first degree (three counts), criminal sale of a controlled substance on the third degree (two counts), criminal possession of a weapon in the fourth degree, and conspiracy in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that he was denied his right to a public trial when the trial court closed the courtroom during the testimony of two undercover police officers.   However, his present claim was waived by his failure to object to the closures at trial, and, in any event, is without merit (see, People v. Akaydin, 258 A.D.2d 466, 685 N.Y.S.2d 737 [decided herewith] ).

 The defendant failed to preserve for appellate review his claim that the court excessively interfered with the examination of witnesses (see, CPL 470.05 [2];  People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399, 438 N.E.2d 1114).   In any event, the record shows that while the court, at times, took an overly active role in the questioning and made some improper comments, its conduct, “measured both qualitatively and quantitatively” (People v. Yut Wai Tom, 53 N.Y.2d 44, 55, 439 N.Y.S.2d 896, 422 N.E.2d 556) did not deprive the defendant of a fair trial (see, People v. Mitchell, 184 A.D.2d 792, 587 N.Y.S.2d 195;  People v. Watts, 159 A.D.2d 740, 553 N.Y.S.2d 213).   While the defendant lists some 48 instances of alleged improper conduct, the court was presiding over a complex 16-week, two-jury trial of six defendants, who had been charged with a total of 21 counts arising from a three-month long multi-agency investigation of an international heroin trafficking operation.   Moreover, many of the court's questions served to clarify confusing testimony or to facilitate the orderly progress of the trial (see, People v. Yut Wai Tom, supra).

 We find no error in the court's refusal to disclose the identity of the confidential informant, who had merely introduced the defendant to an undercover officer.   The defendant failed to establish that the identity of the informer or the informer's testimony would be relevant or helpful to the defendant's defense of duress (see, People v. Castillo, 80 N.Y.2d 578, 592 N.Y.S.2d 945, 607 N.E.2d 1050, cert. denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477;  People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. denied 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286;  People v. Pena, 37 N.Y.2d 642, 376 N.Y.S.2d 452, 339 N.E.2d 149).   The defendant's speculation that the informer was knowledgeable about alleged threats made to the defendant by one of his co-conspirators was insufficient to warrant disclosure (see, People v. Goggins, supra), particularly in light of the threats made upon the informer's life (see, People v. Castillo, supra;  People v. Perkins, 227 A.D.2d 572, 643 N.Y.S.2d 173).   In any event, the undercover officer revealed the identity of the informer by the end of the trial.   While it would have been preferable for the court to have included defense counsel in the ex parte conference held in regard to this matter (see, People v. Goggins, supra;  People v. Nuredinoski, 237 A.D.2d 466, 655 N.Y.S.2d 540), his absence does not require reversal in this case.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.