People v. Alvarado

223 A.D.2d 712, 637 N.Y.S.2d 436, 1996 N.Y. App. Div. LEXIS 616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1996
• Status: Published

Opinions

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered April 10, 1992, 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 reversed, on the law, and a new trial is ordered.

Upon our review of the record, we find that the trial court’s closure of the courtroom to the general public during the testimony of Undercover Police Officer 2544 was improper. At the Hinton hearing (see, People v Hinton, 31 NY2d 71, cert denied 410 US 911) the undercover officer, in articulating the basis of his fear for his safety if he testified in open-court, failed to meet the standard for closure of the courtroom set forth in People v Martinez (82 NY2d 436). While the officer testified, inter alia, to the number of years that he had worked as an undercover police officer, to the number of open and pending cases that he had in Brooklyn, and that he had cases in which no arrests had been made, his testimony simply served to establish his continued activity in the Brooklyn South TNT area (see, e.g., People v Davis, 210 AD2d 345). It did not link his alleged safety concerns as an undercover police officer, as opposed to a Brooklyn South TNT team member, to his testifying in open court in this case (see, People v Martinez, supra, at 443). Moreover, it was not apparent from the officer’s testimony that he continued to work undercover in the location where the defendant was arrested (cf., People v Monroig, 223 AD2d 730 [decided herewith]).

The defendant’s remaining contentions are either without merit or unpreserved for appellate review (see, CPL 470.05 [2]). Joy, Goldstein and Florio, JJ., concur.