PEOPLE v. CAMPBELL

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. William CAMPBELL, Defendant-Appellant.

Decided: October 29, 2009

GONZALEZ, P.J., SAXE, CATTERSON, McGUIRE, ACOSTA, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Daniel A. Warshawsky of counsel), and Davis Polk & Wardwell, New York (Katharine M. Zandy of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel Conviser, J.), rendered April 7, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 3 1/2 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   Defendant's course of conduct, including his initiation of contact with the undercover officer and his interactions with the person who actually sold the drugs, warranted the conclusion that defendant participated in the sale as a steerer and order taker, and did not merely give information as to where someone might purchase drugs (see People v. Eduardo, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008];  People v. Itchier, 304 A.D.2d 480, 758 N.Y.S.2d 324 [2003], lv. denied 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [2003] ).

 The court properly ruled that defendant's aunt and cousin would be excluded from the courtroom while the undercover officer testified.   It is undisputed that the People made a proper showing under Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984] to justify exclusion of the general public.   Moreover, as a panel of the Second Circuit has held, at least as a matter of federal constitutional law, “Waller does not demand a higher showing before excluding a defendant's friends and family” (Rodriguez v. Miller, 537 F.3d 102, 108-109 [2d Cir.2008] ).   In any event, the People made a sufficiently particularized showing to justify exclusion of these two relatives, thereby satisfying the requirements of New York case law (see People v. Nieves, 90 N.Y.2d 426, 660 N.Y.S.2d 858, 683 N.E.2d 764 [1997] ).   The two relatives lived within the area of the undercover operations, and the officer reasonably feared that they might identify him during these operations, therefore posing a threat to his safety and effectiveness (see e.g. People v. Alvarez, 51 A.D.3d 167, 175, 854 N.Y.S.2d 70 [2008], lv. denied 11 N.Y.3d 785, 866 N.Y.S.2d 611, 896 N.E.2d 97 [2008];  People v. Blake, 284 A.D.2d 339, 726 N.Y.S.2d 433 [2001], lv. denied 96 N.Y.2d 916, 732 N.Y.S.2d 632, 758 N.E.2d 658 [2001];  People v. Feliciano, 228 A.D.2d 519, 644 N.Y.S.2d 307 [1996], lv. denied 88 N.Y.2d 1068, 651 N.Y.S.2d 412, 674 N.E.2d 342 [1996] ). The ruling was carefully limited to those of defendant's relatives who both lived in the neighborhood at issue and as to whom the officer's reasonable fear of being exposed was greatest.