Opinion
November 16, 1999
Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered May 8, 1998, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree, and sentencing him to concurrent terms of imprisonment of 1 to 3 years, unanimously affirmed.
Morrie I. Kleinbart for Respondent.
Sara Gurwitch for Defendant-Appellant.
WILLIAMS, J.P., TOM, LERNER, RUBIN, SAXE, JJ.
At issue is the closure of the courtroom during the testimony of the undercover officer. Counsel for codefendant Darnell Manning stated that his client's aunts should be permitted to be present while the officer was on the stand. After the court denied the application, defendant's attorney stated that he "just wanted to join in [the] request." Subsequently, this Court decided that the closure of the courtroom to the codefendant's aunts was based upon an insufficient showing of necessity and ordered a new trial (People v. Manning, 258 A.D.2d 279, 682 N.Y.S.2d 855).
Defendant urges that the denial of his application similarly warrants reversal. However, having failed to specify whom he wished to be present during the undercover officer's testimony (People v. Collins, 254 A.D.2d 154, lv denied 93 N.Y.2d 851), defendant deprived the court of the opportunity to assess the potential danger that might be posed to the officer's safety (People v. Nieves, 90 N.Y.2d 426, 431). We note that there is no indication that any of defendant's family members had been present during trial (see, People v. Sheppard, 257 A.D.2d 464, 684 N.Y.S.2d 518, lv denied 1999 N.Y. LEXIS 2702) and therefore conclude that his objection to closure is unpreserved.
Defendant's other contentions have been examined and found to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.