PEOPLE v. LINARES

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Olavi LINARES, Defendant-Appellant.

Decided: May 20, 2003

NARDELLI, J.P., SAXE, SULLIVAN, WALLACH, and GONZALEZ, JJ. Lara R. Binimow, for Respondent. Lisa Joy Robertson, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered July 26, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 7 1/212 to 15 years and 1 year, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Issues of credibility and identification were properly considered by the trier of facts and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   We do not find the undercover officer's account of the transaction to be implausible.

Since defendant's arguments at the Hinton hearing were completely different from those he now raises on appeal, defendant's contention that the courtroom was improperly closed to the general public during the undercover officer's testimony is unpreserved (see People v. Lugo, 233 A.D.2d 197, 650 N.Y.S.2d 102, lv. denied 89 N.Y.2d 1037, 659 N.Y.S.2d 868, 681 N.E.2d 1315), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the People made a sufficiently particularized showing to warrant closure in that the undercover officer continued to work in the area of defendant's arrest, had pending cases in the courthouse, had unapprehended suspects remaining at large from the area of defendant's arrest and took precautions when testifying (see People v. Ramos, 90 N.Y.2d 490, 498, 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).   We also note that a relative of defendant was permitted to remain throughout the proceedings.

We perceive no basis for reducing the sentence.