People v Echevarria

People v Echevarria 2011 NY Slip Op 08217 Decided on November 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 15, 2011
Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ.
6044 3437/09

[*1]The People of the State of New York, Respondent,

v

Alex Echevarria, Defendant-Appellant.




Center for Appellate Litigation, New York (Robert S. Dean of
counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David E.A.
Crowley of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered April 9, 2010, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of 10 years, unanimously affirmed.

By limiting courtroom closure solely to the duration of the trial testimony of two undercover police officers, and by noting that it would separately consider opening the proceeding to defendant's family members if any requested access to the courtroom during the period of closure, the trial court discharged its duty to consider reasonable alternatives to closing the proceeding (see Presley v Georgia, US, , 130 S Ct 721, 724 [2010]; People v Mickens, 82 AD3d 430 [2011], lv denied 17 NY3d 798 [2011]; People v Manning, 78 AD3d 585, 586 [2010], lv denied 16 NY3d 861 [2011], cert denied US, 2011 WL 4534895, 2011 US LEXIS 5278 [Oct 3, 2011]).

The court's charge on the agency defense adequately conveyed the appropriate principles (see People v Job, 87 NY2d 956 [1996]; People v Pratt, 39 AD3d 315 [2007], lv denied 9 NY3d 849 [2007]). The court was not obligated to include all the language contained in the Criminal Jury Instructions (see People v Ladson, 41 AD3d 248, 249 [2009], lv denied 9 NY3d 877 [2007]), and nothing in the charge as given can be viewed as directing a verdict. In any event, defendant's own testimony negated his agency defense in that he admitted that his desire to [*2]obtain drugs as compensation for arranging the transaction was not incidental, but was his sole motivation (see People v Sanchez, 35 AD3d 161 [2006], lv denied 8 NY3d 949 [2009]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2011

CLERK