PEOPLE v. DUKE

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

The PEOPLE, etc., Respondent, v. William DUKE, Appellant.

Decided: January 27, 1997

Before RITTER, J.P., and THOMPSON, FRIEDMANN and McGINITY, JJ. Daniel L. Greenberg, New York City (William A. Loeb and Allen Fallek, of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Lisa Drury, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latorella, J.), rendered April 4, 1995, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the trial court did not improperly direct the closure of the courtroom during an undercover police officer's testimony.   The officer testified that he would soon be returning to work in the area where the defendant was arrested.   This court has repeatedly held that when the officer so testifies and closure is necessary to protect his safety, the requirements for closure under People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027 have been met (e.g., People v. Mitchell, 209 A.D.2d 444, 618 N.Y.S.2d 457;  People v. Thompson, 202 A.D.2d 454, 608 N.Y.S.2d 674;  People v. Skinner, 204 A.D.2d 664, 612 N.Y.S.2d 419).

 The defendant claims that the presence of an unexplained heat seal on the envelope containing the narcotics indicates that someone may have tampered with the contents of the envelope, and so severed the chain of custody as to require dismissal of the indictment.   This contention is without merit.   While the unexplained heat seal could have affected the weight of the evidence, as the defendant argued on summation, it does not suggest “any prejudicial alteration of the contents of the drugs initially seized” (People v. Julian, 41 N.Y.2d 340, 344, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  People v. Espino, 208 A.D.2d 556, 616 N.Y.S.2d 782).

Finally, contrary to the defendant's contention, the trial court properly concluded that the prosecution's use of peremptory challenges was not pretextual (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;  People v. Richie, 217 A.D.2d 84, 635 N.Y.S.2d 263).

MEMORANDUM BY THE COURT.

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