People v Reed

People v Reed 2007 NY Slip Op 09673 [46 AD3d 285] December 6, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
Billy Reed, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Alan S. Axelrod of counsel), and Dewey & LeBoeuf LLP, New York (Roy Taub of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Olivia Sohmer of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael A. Corriero, J.), rendered November 10, 2005, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3½ years, unanimously affirmed.

Defendant challenges the court's exclusion of his uncle during an undercover officer's testimony. At a Hinton hearing, the People made a proper showing under Waller v Georgia (467 US 39 [1984]) to justify exclusion of the general public. To the extent that defendant is arguing that a heightened or particularized showing was necessary in order to exclude his uncle (see People v Nieves, 90 NY2d 426 [1997]), that claim is unpreserved. Although defendant requested permission for his uncle to attend, he did not make any of the arguments he now raises on appeal. We decline to review this issue in the interest of justice. Were we to review it, we would find that the court made a sufficiently particularized finding to justify the exclusion of defendant's uncle. Concur—Tom, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.