PEOPLE v. FORD

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

The PEOPLE of the State of New York, Respondent, v. Sam FORD, Defendant-Appellant.

Decided: January 21, 1997

Before MURPHY, P.J., and MILONAS, ROSENBERGER, ELLERIN and WILLIAMS, JJ. Stuart P. Levy, for Respondent. Robert Budner, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered July 12, 1994, 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 trial court properly closed the courtroom during the undercover officer's testimony on the basis of his continuing undercover operations in the area of the arrest, and, since defendant's counsel never suggested any reasonable alternatives to closure, the trial court was not required to consider such alternatives (People v. Martinez, 82 N.Y.2d 436, 445-446, 604 N.Y.S.2d 932, 624 N.E.2d 1027).   To the extent that Ayala v. Speckard, 89 F.3d 91 could be viewed as requiring a contrary result, we decline to follow it (People v. Lugo, 233 A.D.2d 197, 650 N.Y.S.2d 102).   Although the court ruled that defendant's relatives would be excluded from the courtroom, defendant's present claim that his brother and cousin were improperly excluded is unpreserved and unreviewable, since defendant merely suggested that these relatives might wish to attend, and there is no indication that any relatives ever came to the courtroom (see, People v. Bouche, 208 A.D.2d 445, 617 N.Y.S.2d 715, lv. denied 84 N.Y.2d 1009, 622 N.Y.S.2d 921, 647 N.E.2d 127).

We have considered defendant's Batson contention and find it to be unpreserved and without merit (see, People v. Lynn, 224 A.D.2d 294, 638 N.Y.S.2d 431, lv. denied 88 N.Y.2d 881, 645 N.Y.S.2d 455, 668 N.E.2d 426).

MEMORANDUM DECISION.