People v. Brown

Jan 28, 1997
Versions:235 A.D.2d 344
653 N.Y.S.2d 544
1997 N.Y. App. Div. LEXIS 606

Judgment, Supreme Court, New York County (Alfred Donati, J.), rendered October 11, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent prison terms of 6 to 12 years and 1 year, respectively, unanimously affirmed.

The court properly exercised its discretion when it closed the courtroom during the trial testimony of the undercover officer, who testified at a Hinton hearing that he expected to be assigned to work undercover in the exact area where defendant was arrested, that he had been threatened many times and that he feared for his safety if the courtroom remained opened during his trial testimony (People v Martinez, 82 NY2d 436; see also, People v Rivera, 237 AD2d 178).

To the extent that the facts of this case may fall within the parameters of both Martinez (supra), and the Second Circuit’s recent conflicting holding in Ayala v Speckard (89 F3d 91, on reh 102 F3d 649), we reaffirm our holding in People v Lugo (233 AD2d 197), that where there is a conflict between the decisional law of the Court of Appeals and that of an intermediate Federal appellate court, the ruling of the State Court of Appeals should be followed (People v Joseph, 85 AD2d 546).

We perceive no abuse of sentencing discretion. Concur— Sullivan, J. P., Milonas, Rosenberger and Rubin, JJ.