People v. Hecker

Appellate Division of the Supreme Court of New York

People v. Hecker

68 A.D.3d 429, 889 N.Y.2d 44

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 3, 2009

StatusPublished

Cited by1 cases

This text of 68 A.D.3d 429 (People v. Hecker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Hecker, 68 A.D.3d 429, 889 N.Y.2d 44 (N.Y. Ct. App. 2009).

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Opinion

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning identification and credibility. [430]*430Two officers easily recognized defendant six days after the sale, when they saw him standing in front of the same store where the sale had occurred.

The court properly granted the People’s Batson application (Batson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The record supports the court’s finding that the race-neutral reasons provided by defense counsel for the peremptory challenge at issue were pretextual, and this finding is entitled to great deference (see People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]). Counsel’s failure to question the panelist was a significant indicator of pretext under the circumstances (see e.g. People v Kidkarndee, 41 AD3d 247 [2007], lv denied 9 NY3d 923 [2007]). Defendant did not preserve his contention that the court failed to follow the required three-step procedure (see People v Richardson, 100 NY2d 847, 853 [2003]), and we decline to review in the interest of justice. As an alternative holding, we reject the claim. In particular, it was permissible for the court to find that defense counsel’s race-neutral reasons were pretextual without hearing from the prosecutor (see People v Payne, 88 NY2d 172, 184 [1996]).

The People made a proper showing under Waller v Georgia (467 US 39 [1984]) to justify closure of the courtroom during the testimony of an undercover officer. Although the officer was no longer working in the area of defendant’s arrest, testimony in an open courtroom still posed a serious risk to his safety, particularly because of the large number of cases he had pending that were likely to be calendared at the same courthouse. Concur — Gonzalez, EJ., Tom, Andrias, Nardelli and Richter, JJ.

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The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning identification and credibility. [430]*430Two officers easily recognized defendant six days after the sale, when they saw him standing in front of the same store where the sale had occurred.

The court properly granted the People’s Batson application (Batson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The record supports the court’s finding that the race-neutral reasons provided by defense counsel for the peremptory challenge at issue were pretextual, and this finding is entitled to great deference (see People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]). Counsel’s failure to question the panelist was a significant indicator of pretext under the circumstances (see e.g. People v Kidkarndee, 41 AD3d 247 [2007], lv denied 9 NY3d 923 [2007]). Defendant did not preserve his contention that the court failed to follow the required three-step procedure (see People v Richardson, 100 NY2d 847, 853 [2003]), and we decline to review in the interest of justice. As an alternative holding, we reject the claim. In particular, it was permissible for the court to find that defense counsel’s race-neutral reasons were pretextual without hearing from the prosecutor (see People v Payne, 88 NY2d 172, 184 [1996]).

The People made a proper showing under Waller v Georgia (467 US 39 [1984]) to justify closure of the courtroom during the testimony of an undercover officer. Although the officer was no longer working in the area of defendant’s arrest, testimony in an open courtroom still posed a serious risk to his safety, particularly because of the large number of cases he had pending that were likely to be calendared at the same courthouse. Concur — Gonzalez, EJ., Tom, Andrias, Nardelli and Richter, JJ.

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Bluebook (online)

68 A.D.3d 429, 889 N.Y.2d 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hecker-nyappdiv-2009.

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