People v Pabellon

People v Pabellon 2012 NY Slip Op 00120 Decided on January 12, 2012 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 January 12, 2012
Mazzarelli, J.P., Andrias, Saxe, Freedman, Román, JJ.
6533 644/07

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

v

Jose Pabellon, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Susan H. Salomon of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Christopher J.
Blira-Koessler of counsel), for respondent.

Judgment, Supreme Court, Bronx County (George R. Villegas, J.), rendered July 1, 2009, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first and second degrees and criminal possession of a weapon in the second degree (two counts), and sentencing him to an aggregate term of 15 years, unanimously affirmed.

The verdict 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 credibility determinations.

The court properly excluded from the courtroom defendant's aunt, who had previously been warned about her conduct in threatening witnesses, and who had been accused of doing so again. This was not a violation of defendant's right to a public trial.

Defendant's principal argument is that the court should have made an inquiry of the allegedly threatened witnesses themselves instead of relying on the prosecutor's representations. However, defense counsel's expression of "concern" about excluding the aunt "based on an accusation" was too vague to alert the court to this precise issue. This is particularly significant because the court could have cured the alleged defect immediately had defendant made a contemporaneous objection. Accordingly, that particular aspect of defendant's public trial claim is unpreserved and we decline to review it in the interest of justice.

As an alternative holding, we also reject it on the merits. The prosecutor's detailed description of the threats made by the aunt was sufficient to establish that her presence in the courtroom, during any testimony, posed a danger of witness intimidation. Furthermore, defense counsel did not dispute the alleged witness tampering other than characterizing it as an "accusation." Assuming, without deciding, that the requirements of Waller v Georgia (467 US 39 [1984]), including the requirement of an overriding interest, apply to a closure that is limited [*2]to the exclusion of a particular spectator from an otherwise open courtroom, we find that all the prongs of the Waller test were satisfied.

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

ENTERED: JANUARY 12, 2012

CLERK