PEOPLE v. DEAN

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

The PEOPLE of the State of New York, Respondent, v. William DEAN, Defendant–Appellant.

Decided: October 20, 2011

TOM, J.P., ANDRIAS, CATTERSON, ACOSTA, RENWICK, JJ. Steven Banks, The Legal Aid Society, New York (Ellen Dille of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered April 21, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the fifth and seventh degrees, and sentencing him to an aggregate term of 1 year and 3 months, unanimously affirmed.

The verdict 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] ).   There is no basis for disturbing the jury's credibility determinations.

 Defendant was acquitted of more serious charges arising out of the same observation sale.   In performing weight of evidence review, we may consider the jury's verdict on other counts (see People v. Rayam, 94 N.Y.2d 557, 563 n., 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).   Nevertheless, we find that the jury's mixed verdict does not warrant a different result.  “ Where a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury's permissible exercise of mercy or leniency” (People v. Horne, 97 N.Y.2d 404, 413, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002];  see also People v. Hemmings, 2 N.Y.3d 1, 5 n., 776 N.Y.S.2d 201, 808 N.E.2d 336 [2004] ).

 The People made a sufficiently particularized showing of an overriding interest justifying closure of the courtroom during an undercover officer's testimony (see e.g. People v. Ramos, 90 N.Y.2d 490, 662 N.Y.S.2d 739, 685 N.E.2d 492 [1997], cert. denied sub nom. Ayala v. New York, 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413 [1997] ).   Instead of a complete closure, the court permitted defendant's family members and other persons specified by defendant to attend, subject to appropriate screening measures.   This satisfied the court's duty to consider reasonable alternatives to full closure (see People v. Mickens, 82 A.D.3d 430, 917 N.Y.S.2d 630 [2011], lv. denied 17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101 [2011];  People v. Manning, 78 A.D.3d 585, 586, 912 N.Y.S.2d 183 [2010], lv. denied 16 N.Y.3d 861, 923 N.Y.S.2d 422, 947 N.E.2d 1201 [2011] ).