| People v James |
| 2008 NY Slip Op 00712 [47 AD3d 947] |
| January 29, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert James, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered September 6, 2006, convicting him of criminal sale of a controlled substance in thethird degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, without a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification testimony.
Ordered that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress identification testimony after taking evidence to establish that the identificationsin question were confirmatory (seePeople v Jones, 25 AD3d 622 [2006]).
During voir dire, the Supreme Court providently exercised its discretion in excusing, suasponte, those prospective jurors who expressed uncertainty as to their ability to be fair (see People v McGhee, 4 AD3d485, 486 [2004]; People v Boozer, 298 AD2d 261 [2002]; People v Laboy,251 AD2d 95 [1998]).
The defendant's contention regarding the allegedly improper closure of the courtroom duringthe testimony of one of the undercover police officers is unpreserved for appellate review (seeCPL 470.05 [2]; People v Casper, 287 AD2d 575 [2001]; People v Martinez,248 AD2d 730, 730-731 [1998]; People v Latta, 222 AD2d 303, 303-304 [1995]). Inany event, the court properly exercised its discretion in closing [*2]the courtroom during the testimony of the undercover police officer.The undercover officer testified at a Hinton hearing (see People v Hinton, 31NY2d 71 [1972], cert denied 410 US 911 [1973]), that he would be returning to the areawhere the arrest took place, that he had lost subjects, had been threatened by subjects in that area,had not testified in open court, and that if his identity were revealed, his safety and cases wouldbe jeopardized. Under these circumstances, the court providently exercised its discretion inconcluding that testifying in open court might endanger the undercover officer's safety orcompromise his effectiveness (seePeople v Gonzalez, 43 AD3d 827 [2007]; People v Lopez, 19 AD3d 510, 511 [2005]; People v Mendez, 5 AD3d 400,401 [2004]).
The court properly declined to submit to the jury criminal possession of a controlledsubstance in the seventh degree as a lesser-included offense of criminal sale of a controlledsubstance in the third degree. Viewing the evidence in the light most favorable to the defendant(see People v Martin, 59 NY2d 704, 705 [1983]; People v Monroe, 30 AD3d 616 [2006]), there is no reasonableview of the evidence to support a finding that he committed the lesser offense but not the greater(see People v Negron, 91 NY2d 788, 793-794 [1998]; People v Scarborough, 49NY2d 364, 373-374 [1980]; People vHernandez, 42 AD3d 657, 659-660 [2007]).
The defendant failed to preserve for appellate review his contentions regarding theprosecutor's summation and the admission of testimony regarding the undercover officer'sphotographic identification. In any event, these contentions are without merit or do not requirereversal.
The defendant's remaining contention is without merit. Prudenti, P.J., Crane, Fisher andMcCarthy, JJ., concur.