People v. Archer

196 A.D.2d 762, 602 N.Y.S.2d 103, 1993 N.Y. App. Div. LEXIS 8789

Opinion

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered February 6, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 8 to 16 years, unanimously modified, on the law, the facts, and as a matter of discretion in the interest of justice, to reduce the sentence to a term of 5 to 10 years, and otherwise affirmed.

We perceive no abuse of discretion in closing the courtroom to the public based on the undercover officer’s expression of fear that his own safety and pending undercover investigations would be jeopardized (see, People v Brown, 178 AD2d 280, lv denied 79 NY2d 918). We find the sentence to be excessive for a sale of such a small amount of crack cocaine to an undercover police officer (see, People v Cowell, 170 AD2d 343, lv denied 77 NY2d 993). The sentence we impose instead takes into account defendant’s criminal history of both petit larceny and attempted robbery, and we note that the prosecutor himself requested a lesser sentence than that imposed by the trial court. Concur—Murphy, P. J., Wallach, Kupferman and Ross, JJ.