| People v Hecker |
| 2009 NY Slip Op 08955 [68 AD3d 429] |
| December 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Joseph Hecker, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel),for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered July 14, 2008,convicting defendant, after a jury trial, of criminal sale of a controlled substance in the thirddegree, and sentencing him, as a second felony drug offender whose prior felony conviction wasa violent felony, to a term of six years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning identification and credibility. Two officers easily recognized defendant six days afterthe sale, when they saw him standing in front of the same store where the sale had occurred.
The court properly granted the People's Batson application (Batson vKentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied498 US 824 [1990]). The record supports the court's finding that the race-neutral reasonsprovided by defense counsel for the peremptory challenge at issue were pretextual, and thisfinding is entitled to great deference (see People v Hernandez, 75 NY2d 350, 356 [1990],affd 500 US 352 [1991]). Counsel's failure to question the panelist was a significantindicator of pretext under the circumstances (see e.g. People v Kidkarndee, 41 AD3d 247 [2007], lv denied 9NY3d 923 [2007]). Defendant did not preserve his contention that the court failed to follow therequired three-step procedure (see People v Richardson, 100 NY2d 847, 853 [2003]),and we decline to review in the interest of justice. As an alternative holding, we reject the claim.In particular, it was permissible for the court to find that defense counsel's race-neutral reasonswere pretextual without hearing from the prosecutor (see People v Payne, 88 NY2d 172,184 [1996]).
The People made a proper showing under Waller v Georgia (467 US 39 [1984]) tojustify closure of the courtroom during the testimony of an undercover officer. Although theofficer was no longer working in the area of defendant's arrest, testimony in an open courtroomstill posed a serious risk to his safety, particularly because of the large number of cases he hadpending that were likely to be calendared at the same courthouse. Concur—Gonzalez, P.J.,Tom, Andrias, Nardelli and Richter, JJ.