PEOPLE v. SMITH

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

The PEOPLE of the State of New York, Respondent, v. Kenny SMITH, Defendant-Appellant.

Decided: June 14, 2001

WILLIAMS, J.P., MAZZARELLI, ANDRIAS, LERNER and SAXE, JJ. Eleanor J. Ostrow, for Respondent. Jonathan M. Kirshbaum, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Renee White, J.), rendered April 6, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

 The People made a sufficient showing to warrant closure of the courtroom during the undercover officers' testimony (see, People v.. Ramos, 90 N.Y.2d 490, 499, 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).   The officers were still actively engaged in ongoing undercover operations in the specific area of the instant arrest, had received threats from drug dealers, and habitually employed security precautions when appearing in court.   Contrary to defendant's argument, this showing was appropriately particularized.

 The People established by clear and convincing evidence that there was an independent source for an in-court identification by an undercover officer (see, People v. Williams, 222 A.D.2d 149, 646 N.Y.S.2d 665, lv. denied, 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346).   The trained undercover officer, who carefully observed defendant for the purpose of making an identification, had a vivid, detailed recollection of defendant based on her own observations before, during and after the sale, independent of an identification that had been suppressed on Fourth Amendment grounds.