People v. Davis

166 A.D.2d 280, 564 N.Y.S.2d 303, 1990 N.Y. App. Div. LEXIS 11913

Opinion

Judgment, Supreme Court, New York County (Rose L. Rubin, J.), rendered January 21, 1988, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a second felony offender, to a term of from 5 to 10 years’ incarceration, unanimously affirmed.

The trial court did not violate defendant’s right to be present during all material stages of trial (see, People v Mehmedi, 69 NY2d 759), since the only matter conducted during defendant’s absence was a discussion of whether the courtroom should be closed during the testimony of the undercover police officer. The court’s decision to close the courtroom was not error since counsel for defendant consented to closure, and did not raise the issue once defendant appeared prior to the police officer taking the witness stand.

The sentencing court committed no abuse of discretion. We reject his argument that the facts demonstrated that he was a subordinate in codefendant’s drug sale operation and thus entitled to a sentence equal to or less than the nine-year maximum imposed upon codefendant. Concur—Kupferman, J. P., Ross, Carro, Asch and Ellerin, JJ.