| People v Manning |
| 2010 NY Slip Op 08776 [78 AD3d 585] |
| November 30, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v TroyManning, Appellant. |
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Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 7,2009, convicting defendant, after a jury trial, of two counts of criminal sale of a controlled substance inthe first degree, five counts of criminal sale of a controlled substance in the second degree, and 11counts of criminal sale of marijuana in the second degree, and sentencing him, as a second felony drugoffender, to an aggregate term of 42 years, unanimously modified, as a matter of discretion in theinterest of justice, to the extent of reducing the sentences for the first-degree sale convictions from 24years to 18 years and directing that all sentences run concurrently, resulting in a new aggregate term of18 years, and otherwise affirmed.
The evidence at a Hinton hearing established an overriding interest that warranted a limitedclosure of the courtroom (see Waller v Georgia, 467 US 39 [1984]; People v Ramos,90 NY2d 490, 497 [1997], cert denied sub nom. Ayala v New York, 522 US 1002 [1997]).The officer testified that he continued his undercover work in the specific area of defendant's allegedsales, and that in connection with his operations in that area he had open investigations, unidentifiedsubjects, lost subjects and other cases pending in the courthouse. This demonstrated that his safety andeffectiveness would be jeopardized by testifying in an open courtroom, and it satisfied the requirementof a particularized showing.
Even though defendant preserved his general claim that the courtroom should not have beenclosed, he did not preserve his specific complaint that the court failed to set forth adequate findings offact to justify closure. A separate contemporaneous objection was necessary because "a timelyobjection . . . would have permitted the court to rectify the situation instantly by makingexpress findings" (People v Doster, 13AD3d 114, 115 [2004], lv denied 4 NY3d 763 [2005]). Accordingly, we decline toreview this claim in the interest of justice. As an alternative holding, we find that the court's ruling"implicitly adopted the People's particularized showing" and was "specific enough that a reviewing courtcan determine whether the closure order was properly entered" (id.).
Defendant also argues that the court failed to consider reasonable alternatives to closure. However,the closure only applied during the undercover officer's testimony, and the court stated [*2]it would permit defendant's family members to attend and would consideradmitting other persons on an individual basis. This was adequate to satisfy the Wallerrequirement of considering alternatives to the exclusion of all spectators (see Presley v Georgia,558 US —, —, 130 S Ct 721, 724 [2010]).
We find the sentence excessive to the extent indicated. Concur—Gonzalez, P.J., Mazzarelli,Nardelli, Renwick and DeGrasse, JJ.