PEOPLE v. BROWN

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

The PEOPLE of the State of New York, Respondent, v. Kenneth BROWN, Defendant-Appellant.

Decided: January 28, 1997

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and RUBIN, JJ. Elliot Felig, for Respondent. Howard D. Simmons, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Alfred Donati, J.), rendered October 11, 1994, 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 prison terms of 6 to 12 years and 1 year, respectively, unanimously affirmed.

 The court properly exercised its discretion when it closed the courtroom during the trial testimony of the undercover officer, who testified at a Hinton hearing that he expected to be assigned to work undercover in the exact area where defendant was arrested, that he had been threatened many times and that he feared for his safety if the courtroom remained opened during his trial testimony (People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027;  see also, People v. Rivera, 237 A.D.2d 178, 654 N.Y.S.2d 771).

 To the extent that the facts of this case may fall within the parameters of both Martinez, supra, and the Second Circuit's recent conflicting holding in Ayala v. Speckard, 89 F.3d 91, on reh'g 102 F.3d 649, we reaffirm our holding in People v. Lugo, (233 A.D.2d 197, 650 N.Y.S.2d 102, 103), that where there is a conflict between the decisional law of the Court of Appeals and that of an intermediate Federal appellate court, the ruling of the state Court of Appeals should be followed (People v. Joseph, 85 A.D.2d 546, 445 N.Y.S.2d 2).

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.