PEOPLE v. VELASQUEZ

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

The PEOPLE of the State of New York, Respondent, v. Ada VELASQUEZ, Defendant-Appellant.

Decided: October 20, 1998

LERNER, P.J., SULLIVAN, ROSENBERGER, ELLERIN and RUBIN, JJ. Allen H. Saperstein, for Respondent. Eric Brenner, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered July 17, 1995, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree and, sentencing her, as a second felony offender, to concurrent terms of 7 to 14 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to concurrent terms of 5 to 10 years, and otherwise affirmed.

 The court properly granted closure of the courtroom during the testimony of the undercover officer.   The People elicited a sufficient basis, including the fact that the undercover officer had continuing operations in a limited geographical area that included the area of defendant's arrest, to warrant closure of the courtroom during the testimony of the undercover officer (People v. Ayala, 90 N.Y.2d 490, 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 court's prompt actions, including curative instructions, prevented any possibility of prejudice arising from testimony suggesting that defendant or her codefendant might have been previously known to the police and defendant's mistrial motion was properly denied (see, People v. DeMauro, 48 N.Y.2d 892, 893, 424 N.Y.S.2d 884, 400 N.E.2d 1336).

 The court properly denied defendant's motion for a mistrial based upon testimony that defendant contends improperly bolstered the undercover's identification testimony, since the challenged testimony did not constitute improper bolstering in the context of this buy and bust case (People v. Eastman, 239 A.D.2d 276, 277, 658 N.Y.S.2d 846).   In any event, the trial court sustained objections, struck much of the complained-of testimony and gave prompt curative instructions (see, People v. Watkins, 212 A.D.2d 357, 622 N.Y.S.2d 513, lv. denied, 85 N.Y.2d 981, 629 N.Y.S.2d 742, 653 N.E.2d 638).

We find the sentence excessive to the extent indicated.

MEMORANDUM DECISION.