People v O'Conner

People v O'Conner 2011 NY Slip Op 08797 Decided on December 6, 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 December 6, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, DeGrasse, JJ.
6219 4180/08

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

v

Antwan O'Conner, etc., Defendant-Appellant.




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

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered December 4, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of six years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations, including its resolution of inconsistencies in testimony.

The court properly closed the courtroom during an undercover officer's testimony (see Waller v Georgia, 467 US 39 [1984]; People v Ramos, 90 NY2d 490, 497 [1997], cert denied sub nom. Ayala v New York, 522 US 1002 [1997]). Instead of ordering a complete closure, the court permitted defendant's family and certain other persons to attend. In addition, it implicitly considered but rejected another alternative to closure proposed by defendant, and that determination was reasonable under the circumstances. Accordingly, the court satisfied the Waller requirement of considering alternatives to full closure (see Presley v Georgia, 558 US __, __, 130 S Ct 721, 724 [2010]; People Mickens, 82 AD3d 430 [2011], lv denied 17 NY3d 798 [2011], cert denied US, 2011 WL 4384159, 2011 US LEXIS 7608 [Oct 31, 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 [2011]).

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

ENTERED: DECEMBER 6, 2011

CLERK