People v. Pepe

235 A.D.2d 221, 653 N.Y.S.2d 101, 1997 N.Y. App. Div. LEXIS 69

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1997
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered on or about May 23, 1994, 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 4½ to 9 years, unanimously affirmed.

The trial court properly exercised its discretion to close the courtroom during the undercover officer’s testimony concerning the existence of 40 to 50 unresolved cases from the Manhattan South area where the undercover continued to participate in buy and bust operations (People v Dones, 220 AD2d 267, lv denied 87 NY2d 900), and the officer feared for his safety based on a previous threat on his life (People v Martinez, 82 NY2d 436). Moreover, we find that the court properly took into consideration its personal observation that defendants from other pending narcotics cases, including one particular individual, were highly likely to be present in court (see, People v Gross, 179 AD2d 138, 142, lv denied 80 NY2d 832). To the extent that Ayala v Speckard (89 F3d 91) might require a different result, we decline to follow that case (People v Rivera, 237 AD2d 178.

The jury had ample basis upon which to reject defendant’s testimony that he was merely acting as the undercover’s agent in the underlying drug transaction. Thus, the verdict was not based on insufficient evidence nor was it against the weight of the evidence (People v Bleakley, 69 NY2d 490). Concur—Sullivan, J. P., Milonas, Rosenberger, Nardelli and Mazzarelli, JJ.