| People v Floyd |
| 2007 NY Slip Op 09280 [45 AD3d 1457] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Derrick Floyd,Also Known as Derrick Da'Won Floyd, Also Known as Dwon, Also Known as Won,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered January 11, 2006. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law former § 265.03 [2]).Defendant contends that Supreme Court erred in closing the courtroom during the testimony of aprosecution witness who had expressed fear for his safety if he testified before defendant's familyand friends. Closure is appropriate when " 'the party seeking to close the [proceeding]. . . advance[s] an overriding interest that is likely to be prejudiced, the closure [is]no broader than necessary to protect that interest, the trial court [has] consider[ed] reasonablealternatives to closing the proceeding, and [the court] make[s] findings adequate to support theclosure' " (People v Frost, 100 NY2d 129, 137 [2003], quoting Waller v Georgia,467 US 39, 48 [1984]). Defendant does not dispute that the first prong was met, and we reject hiscontention that the remaining prongs were not met. The court ensured that the closure was nobroader than necessary in that it closed the courtroom only during the testimony of that witness,and it made exceptions for, inter alia, defendant's mother and members of the media. The court'sfailure to consider alternatives to closure "is not error [inasmuch as] the record was sufficient tosupport closure of the courtroom and . . . defense counsel did not advocate for anyless restrictive options" (id. at 137-138; see People v Ramos, 90 NY2d 490, 504[1997]). Finally, the court made findings sufficient to support the closure at the conclusion of thehearing conducted pursuant to People v Hinton (31 NY2d 71 [1972], cert denied410 US 911 [1973]) to determine whether closure was appropriate.
We reject defendant's further contention that the court erred in conducting the Hintonhearing ex parte. The Hinton hearing "did not constitute a material stage of the trialduring which defendant's presence was required" (People v Wood, 259 AD2d 777, 779[1999], lv denied 93 [*2]NY2d 1007 [1999]; seePeople v Olivero, 289 AD2d 1082 [2001], lv denied 98 NY2d 639 [2002]; Peoplev Ramirez, 192 AD2d 382 [1993], lv denied 81 NY2d 1078 [1993]; People vDelancey, 173 AD2d 838 [1991], lv denied 78 NY2d 1075 [1991]). We note that,although the better practice would have been to allow defense counsel to be present during thehearing, reversal is not warranted under the circumstances of this case (see Frost, 100NY2d at 134-135; People v Vargas, 88 NY2d 363, 379 [1996]). The People stated thatthe witness had been threatened on two occasions by strangers who were attempting to dissuadehim from testifying, and the witness in fact did not comply with a subpoena to testify before thegrand jury because he feared for his safety. There was also no deprivation of the right of thedefendant to confront and cross-examine witnesses against him (see Frost, 100 NY2d at134-135). Defense counsel was afforded the opportunity to submit questions for the witness atthe Hinton hearing, but he declined to do so (cf. id. at 135). In addition, "[t]heevidence at the ex parte hearing did not bear on defendant's guilt or innocence but rather[focused] on the safety of the witness and was unrelated to factual issues presented at trial"(id.).
Defendant next contends that his right to a fair trial was violated by the prosecutor'scross-examination of an alibi witness in the absence of a proper foundation for thatcross-examination. Here, the People laid the proper foundation for impeaching the credibility ofthat alibi witness through the use of her prior silence by establishing "that the witness was awareof the nature of the charges pending against the defendant, had reason to recognize that [she]possessed exculpatory information, had a reasonable motive for acting to exonerate the defendantand, finally, was familiar with the means to make such information available to law enforcementauthorities" (People v Dawson, 50 NY2d 311, 321 n 4 [1980]; see People vMiller, 89 NY2d 1077, 1079 [1997]; People v Cain, 9 AD3d 827 [2004], lv denied 3 NY3d 671[2004]). The record does not support defendant's contention that the People failed to establishthat the witness was familiar with the means to make the information available to the police. Thewitness testified that she knew the location of the police headquarters and that she in fact hadtelephoned the police on a prior occasion.
We reject defendant's contention that the photo array identification procedure was undulysuggestive (see generally People v Chipp, 75 NY2d 327, 335 [1990], cert denied498 US 833 [1990]). Although the police detective who conducted the identificationprocedure testified that she told the witnesses, who viewed the array at different times, to look atthe photographs and pick out the person that they saw shoot the gun, she further testified that shedid not tell the witnesses that they must make an identification, nor did she state that the photoarray contained a photograph of the suspect. In any event, "advising a witness that a photographof the suspect is included in the array 'is not fatal to the propriety of the procedure' " (People vBrennan, 261 AD2d 914, 915 [1999], lv denied 94 NY2d 820 [1999]).
Contrary to defendant's contention, the court conducted a sufficient Gomberg inquiryonce it became aware that defense counsel had previously represented a prosecution witness(see generally People v McDonald, 68 NY2d 1, 8-9 [1986], rearg dismissed 69NY2d 724 [1987]). Defendant informed the court that he wanted defense counsel to continue torepresent him, and it thus cannot be said that defendant was denied effective assistance ofcounsel (see People v Walker, 2AD3d 1358, 1359 [2003], lv denied 3 NY3d 650 [2004]; People v Smith,306 AD2d 858, 860 [2003], lv denied 100 NY2d 587 [2003]). In any event, reversalwould not be required based on the court's allegedly insufficient inquiry inasmuch as "there is noindication here that the potential conflict bore a 'substantial relation' to the representation"(People v Harris, 99 NY2d 202, 211 [2002]; see People v Botting, 8 AD3d 1064, 1065-1066 [2004], lvdenied 3 NY3d 671 [2004]). Contrary to the further contention of defendant, the court didnot err in denying his Batson challenge. The court properly determined that theprosecutor's explanation for exercising a peremptory challenge with respect to a prospective jurorwas race-neutral, and defendant failed to meet his ultimate burden of establishing that theexplanation was pretextual (see People vJohnson, 38 AD3d 1327 [2007], lv denied [*3]9NY3d 866 [2007]; People v Scott,32 AD3d 1178, 1180 [2006], lv denied 8 NY3d 884 [2007]; see generally Peoplev Smocum, 99 NY2d 418, 422 [2003]). Finally, the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentenceis not unduly harsh or severe. Present—Martoche, J.P., Centra, Peradotto, Green and Pine,JJ.