| People v Acevedo |
| 2009 NY Slip Op 03673 [62 AD3d 464] |
| May 7, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Benito Acevedo, Appellant. The People of the State of New York,Respondent, v Eddie Cotto, Appellant. |
—[*1] Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for Eddie Cotto,appellant. Eddie Cotto, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered November 14,2006, convicting defendant Acevedo, after a jury trial, of criminal sale of a controlled substancein the third degree and criminal possession of a controlled substance in the third degree, andsentencing him, as a second felony drug offender whose prior conviction was a violent felony, toconcurrent terms of six years, unanimously affirmed. Judgment, same court, (Rena K. Uviller, J.,at suppression hearing; Renee A. White, J., at jury trial and sentence), rendered November 28,2006, convicting defendant Cotto of criminal sale of a controlled substance in the third degreeand criminal possession of a controlled substance in the third degree, and sentencing him, as asecond felony drug offender, to concurrent terms of six years, unanimously affirmed.
Defendants did not preserve any claim that the court's ruling permitting the two undercoverdetectives to testify under their shield numbers violated defendants' constitutional rights,including their right of confrontation. At a Hinton hearing (People v Hinton, 31NY2d 71 [1972], cert denied 410 US 911 [1973]), defendants stated their opposition toclosure of the [*2]courtroom. In that connection, defendantsexpressed, at most, a perfunctory opposition to concealment of the officers' names. In particular,neither defendant asserted any need to know the officers' names for purposes of impeachment orinvestigation. Accordingly, defendants' present constitutional arguments (see Smith vIllinois, 390 US 129 [1968]), including Cotto's pro se claim, are unpreserved and we declineto review them in the interest of justice. As an alternative holding, we also reject them on themerits (see United States v Rangel, 534 F2d 147, 148 [9th Cir 1976], cert denied429 US 854 [1976]). The People's showing of an overriding interest justifying partial closureof the courtroom also satisfied their burden, under People v Waver (3 NY3d 748 [2004]), of establishing a need forthe officers' anonymity. Moreover, in addition to that showing, both officers providedparticularized explanations for their fear of disclosing their true names to defendants and theirrelatives. Defendants have not established that learning the officers' true names, as opposed totheir shield numbers, would have had any impeachment or investigatory value (see People v Washington, 40 AD3d228 [2007], lv denied 9 NY3d 927 [2007]).
We reject defendant Cotto's challenges to the sufficiency and weight of the evidence againsthim (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility. His argument that the evidence only established that he sold drugs todefendant Acevedo, who then made a separate sale to an undercover officer, is unpreserved andwe decline to review it in the interest of justice. As an alternative holding, we also reject it on themerits. The chain of events, viewed as a whole, warrants the inference that Cotto and Acevedohad acted as a team to sell drugs to the officer, and that they jointly possessed, with intent to sell,the eight additional glassine envelopes of heroin recovered from Acevedo (see e.g.People v Roman, 83 NY2d 866 [1994]).
The court properly denied Cotto's request to exclude from evidence $146 in one-dollar andfive-dollar bills recovered from him at the time of his arrest. This evidence was highly probativeof Cotto's intent to sell the drugs recovered from Acevedo (see People v White, 257AD2d 548, 548-549 [1999], lv denied 93 NY2d 930 [1999]). To the extent that Cotto ispresently arguing that the money was irrelevant because he did not act in concert with Acevedoin possessing the drugs, that was a question for the jury. As noted, the jury could properlyresolve that issue against Cotto.
We have considered and rejected Cotto's pro se claims regarding the hearing court'ssuppression ruling and the trial court's response to a jury note. Concur—Mazzarelli, J.P.,Sweeny, Nardelli, Freedman and Richter, JJ.