PEOPLE v. FACE

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

The PEOPLE of the State of New York, Respondent, v. Ariel FACE, Defendant-Appellant.

Decided: October 22, 1998

Before ELLERIN, J.P., NARDELLI, WALLACH, RUBIN and TOM, JJ. Tami J. Aisenson, for Respondent. Carol Santangelo, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered December 23, 1994, convicting defendant, after a jury trial, on two counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent prison terms of 4 1/ 21 2 to 9 years, unanimously affirmed.

 Upon remittitur from this Court for a Dunaway hearing (247 A.D.2d 336, 669 N.Y.S.2d 289), the trial court concluded that there was probable cause to pursue and arrest defendant, and we agree.   The arresting officer acted on reliable information from the observing undercover officer (see, People v. Rosario, 162 A.D.2d 388, 558 N.Y.S.2d 7, affd. 78 N.Y.2d 583, 578 N.Y.S.2d 454, 585 N.E.2d 766, cert. denied 502 U.S. 1109, 112 S.Ct. 1210, 117 L.Ed.2d 448) that defendant, rather than being an innocent bystander, had actually participated in the negotiations leading to the transaction (cf., Matter of Nelson S., 196 A.D.2d 422, 600 N.Y.S.2d 943).   His immediate flight, when approached by police, merely intensified the latter's founded suspicion that defendant had been involved in criminal activity, and provided the necessary predicate for pursuit (People v. Sierra, 83 N.Y.2d 928, 615 N.Y.S.2d 310, 638 N.E.2d 955).

 Defendant has additionally challenged the closure of the courtroom during testimony by the undercover officers.   That ruling was justified in light of the fact that both officers were still involved in high-risk undercover activities, at the time of trial, in the same neighborhood where this incident had taken place (People v. Pearson, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027).

MEMORANDUM DECISION.