| People v Mickens |
| 2011 NY Slip Op 01582 [82 AD3d 430] |
| March 3, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Shawndale Mickens, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White J.), rendered April 22, 2008,as amended November 11, 2009, convicting defendant, after a jury trial, of criminal sale of acontrolled substance in the first and second degrees, criminal possession of a controlledsubstance in the third degree, criminal possession of a weapon in the second and third degrees,and criminal sale of a firearm in the third degree, and sentencing him, as a persistent felonyoffender, to an aggregate term of 16 years to life, unanimously affirmed.
The evidence at the Hinton hearing established an overriding interest that warrantedthe limited closure of the courtroom (see Waller v Georgia, 467 US 39 [1984]).Therefore, the closure order did not violate defendant's right to a public trial. The officertestified, among other things, that he continued his undercover work in the vicinity of the chargedcrimes, that he had open investigations, that he had cases pending in the courthouse, that he hadbeen threatened in other undercover investigations, and that he took precautions to protect hisidentity. This demonstrated that his safety and effectiveness would be jeopardized by testifying inan open courtroom, and it satisfied the requirement of a particularized showing (see People vRamos, 90 NY2d 490, 498-499 [1997], cert denied sub nom. Ayala v New York, 522US 1002 [1997]). Furthermore, the court considered and adopted a reasonable alternative to fullclosure, and the closure, which allowed family members to attend, was no broader thannecessary. The court made adequate findings on the record to support its limited closure order.
The persistent felony offender statute (Penal Law § 70.10) is constitutional (People v Quinones, 12 NY3d 116[2009]). Defendant's other challenges to the procedures by which he was adjudicated a persistentfelony offender are without merit. The 2009 resentencing corrected [*2]any defects in the original adjudication. The court properlyexercised its discretion regarding the adjudication, and we perceive no basis for reducing thesentence. Concur—Saxe, J.P., Sweeny, Catterson, Freedman and RomÁn, JJ.