| People v Garay |
| 2013 NY Slip Op 04719 [107 AD3d 580] |
| June 20, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Benny Garay, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 23,2010, convicting defendant, after a jury trial, of criminal possession of a controlledsubstance in the fifth degree, and sentencing him to time served, unanimously affirmed.
Defendant's constitutional challenges to his attorney's momentary absence from abrief discussion (characterized by defendant on appeal as a "hearing") about whether toreplace an ill juror are unpreserved (see People v Narayan, 54 NY2d 106,112-113 [1981]), and we decline to review them in the interest of justice. Unlike thesituation in People vStrothers (87 AD3d 431 [1st Dept 2011]), the circumstances accorded counselample opportunity to preserve this issue. As an alternative holding, we reject defendant'sclaims on the merits. First, there had been an off-the-record discussion of the juror issuethat included all counsel including defendant's counsel. Second, when the matter wasdiscussed on the record, the codefendant's counsel, who had spoken with defendant'scounsel, conveyed to the court the defendants' joint position in favor of retaining thejuror if possible, and the absence of any "conflict" between the defendants on this singleissue is manifest. Finally, defendant's counsel arrived in the courtroom before the ill jurorwas actually replaced by an alternate, and did not request to be heard any further. Basedon all of these factors, we find no violation of defendant's rights to counsel or to a fairtrial (see Hunte v Keane, 1999 WL 754273, *5-8, 1999 US Dist LEXIS 14671,*18-22 [ED NY Aug. 24, 1999]).
The court properly denied defendant's suppression motion without granting ahearing. Defendant's allegations failed to raise a legal basis for suppression (see People v Burton, 6 NY3d584, 587 [2006]). The detailed information provided by the People appriseddefendant that his arrest was based on his complicity in a drug-selling operation over thecourse of a long-term police investigation, and specifically upon his driving a personwho had allegedly conducted a series of drug sales. Defendant's assertion that at the timeof his arrest he had not "engaged in any criminal conduct," and that he was "dropping offa family member" were insufficient to raise any factual dispute requiring a hearing(see e.g. People v Jones, 95 NY2d 721, 729 [2001]; People v Vermont, 96 AD3d573 [1st Dept 2012], lv denied 19 NY3d 1002 [2012]).
Defendant did not preserve his specific argument concerning the court's ruling on[*2]courtroom closure during the testimony ofundercover officers (see Peoplev Alvarez, 20 NY3d 75, 81 [2012]), and we decline to review it in the interest ofjustice. As an alternative holding, we reject it on the merits. The trial court narrowlytailored the courtroom closure to the portion of the proceedings implicating overridingsafety interests, namely, during the testimony of the two undercover officers (see People v Echevarria, 89AD3d 545, 546 [1st Dept 2011], revd on other grounds 21 NY3d 1 [2013]).Further, the court made an exception for defendant's family members to attend. It canthus "be implied that the trial court, in ordering closure, determined that no lesseralternative would protect the articulated interest" (People v Ramos, 90 NY2d490, 504 [1997]). Presley v Georgia (558 US 209 [2010]) does not oblige a trialcourt to engage in an on-the-record review of all alternatives before deciding upon alimited closure. Concur—Andrias, J.P., Moskowitz, Freedman, Manzanet-Danielsand Feinman, JJ.