| People v Moss |
| 2011 NY Slip Op 08479 [89 AD3d 600] |
| November 22, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Andrew Moss, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J., at suppression hearing;Daniel P. FitzGerald, J., at jury trial and sentencing), rendered February 9, 2009, convictingdefendant of criminal sale of a controlled substance in the third degree, and sentencing him, as asecond felony drug offender whose prior felony conviction was a violent felony, to a term of 10years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, including its evaluation of the arresting officer's use ofdocuments to refresh his recollection.
Defendant claims that the arresting officer, who testified to the detailed radioed descriptionon which he relied, and then testified that defendant matched that description, was also requiredto testify as to defendant's actual appearance. Since defendant's arguments were insufficient toalert the court to that specific claim, it is unpreserved and we decline to review it in the interestof justice. As an alternative holding, we also reject it on the merits (see People v Lewis, 37 AD3d 176,177 [2007], lv denied 9 NY3d 846 [2007]). The officer described defendant's appearanceat the time of his arrest by incorporating by reference the detailed description he had just given.
The evidence at a Hinton hearing established an overriding interest that warrantedclosure of the courtroom (see Waller v Georgia, 467 US 39 [1984]; People vRamos, 90 NY2d 490, 497 [1997], cert denied sub nom. Ayala v New York, 522 US1002 [1997]). The undercover officer testified that he continued to work in, among other places,the area of the sale, that he had pending cases connected with that area, that he had beenthreatened while working in the area, and that he took precautions when entering the courthouseto protect his identity.
Instead of ordering a complete closure, the court permitted defendant's family to attend. Inaddition, it considered but rejected an alternative to closure proposed by defendant. Accordingly,the court satisfied the Waller requirement of considering alternatives to full closure(see Presley v Georgia, 558 US —, —, 130 S Ct 721, 724 [2010]; PeopleMickens, 82 AD3d 430[*2][2011], lv denied 17NY3d 798 [2011], cert denied 565 US —, — S Ct —, 2011 WL4384159, 2011 US LEXIS 7608 [2011]; People v Manning, 78 AD3d 585, 586 [2010], lv denied 16NY3d 861 [2011]).
The court properly exercised its discretion in denying defendant's midtrial motion for aseverance. Defendant failed to demonstrate that, during trial, his defense and that of hiscodefendant had become so antagonistic as to require separate trials (see People vCardwell, 78 NY2d 996 [1991]; People v Mahboubian, 74 NY2d 174, 183 [1989]).The codefendant's testimony was favorable to defendant, and defendant's argument that thistestimony did more harm than good is speculative.
Defendant's claims regarding the prosecutor's summation and the court's interested witnesscharge are unpreserved and we decline to review them in the interest of justice. As an alternativeholding, we find no basis for reversal. Concur—Moskowitz, J.P., Renwick, DeGrasse,Abdus-Salaam and RomÁn, JJ.