PEOPLE v. TATE (2013)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered August 19, 2010, convicting him of criminal sale of a controlled substance in the third degree (seven counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contentions regarding the Supreme Court's closure of the courtroom during the testimony of two undercover police detectives are unpreserved for appellate review (see CPL 470.05[2]; People v. James, 47 A.D.3d 947, 948, 849 N.Y.S.2d 670; People v. Latta, 222 A.D.2d 303, 303–304, 636 N.Y.S.2d 4). In any event, under the circumstances of this case, the court providently adopted a reasonable alternative to full closure of the courtroom, excluding the general public and allowing the defendant's sister and the defendant's friend to be present during the testimony of the two undercover detectives, and placing a blackboard in front of the detectives so as to shield their identities from the sister and the friend. The two undercover detectives testified at a 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) that they had conducted a long-term undercover operation in the particular housing project where the defendant had been arrested, and that there were unapprehended or “lost” subjects from that investigation. Further, they both testified that they had been threatened by subjects in the past and their safety would be jeopardized if their identities were revealed, that they both planned to conduct future narcotics operations in the area and that one detective planned to return to the particular housing project, that they currently had pending cases in the courthouse in which they were testifying, and that they took special precautions when testifying in court so as to protect their identities. Contrary to the defendant's contention, this testimony exceeded mere “unparticularized impressions of the vicissitudes of undercover narcotics work in general” and included particularized references to their own work which established a specific link between their safety concerns and open-court testimony in this case (People v. Ramos, 90 N.Y.2d 490, 498, 662 N.Y.S.2d 739, 685 N.E.2d 492, cert denied sub nom. Ayala v. New York, 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413 [internal quotation marks omitted]; see People v. Martinez, 82 N.Y.2d 436, 443, 604 N.Y.S.2d 932, 624 N.E.2d 1027; People v. Mazarigos, 76 A.D.3d 533, 534, 907 N.Y.S.2d 496; People v. James, 47 A.D.3d at 948, 849 N.Y.S.2d 670; People v. Gonzalez, 43 A.D.3d 827, 827–828, 843 N.Y.S.2d 632; People v. Mendez, 5 A.D.3d 400, 771 N.Y.S.2d 905).

The defendant's contention in his pro se supplemental brief relating to an alleged Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) is unpreserved for appellate review (see CPL 470.05[2]; People v. Thompson, 81 A.D.3d 670, 672, 916 N.Y.S.2d 151; People v. Murad, 55 A.D.3d 754, 756, 865 N.Y.S.2d 331) and, in any event, is without merit. The defendant's contention, also raised in his pro se supplemental brief, that the prosecutor presented perjured testimony, is likewise unpreserved for appellate review and, in any event, without merit (see People v. Garcia, 57 A.D.3d 918, 919, 869 N.Y.S.2d 618).