| People v Brown |
| 2014 NY Slip Op 02683 [116 AD3d 568] |
| April 17, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rod H. Brown, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), renderedApril 20, 2011, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in or near school grounds, and criminal possession of a controlled substance inthe fifth degree, and sentencing him, as a second felony drug offender previouslyconvicted of a violent felony, to an aggregate term of 10 years, unanimously affirmed.
Although the court did not explicitly discuss on the record alternatives to closing thecourtroom for the testimony of the undercover officers, the record sufficientlydemonstrates that the court fulfilled its obligation under Waller v Georgia (467US 39 [1984]) to consider such alternatives (see People v Echevarria, 21 NY3d 1, 14-19 [2013]). As theCourt of Appeals has held, where the record in a buy-and-bust case "makes no mentionof alternatives but is otherwise sufficient to establish the need to close the particularproceeding . . . it can be implied that the trial court, in ordering closure,determined that no lesser alternative would protect the articulated interest" (People vRamos, 90 NY2d 490, 503-504 [1997], cert denied 522 US 1002 [1997];see also Echevarria, 21 NY3d at 18 [finding that the holding in Ramos isunaffected by Presley v Georgia, 558 US 209 (2010)]).
Criminal Court (Ellen M. Coin, J.), properly determined that defense counsel had theultimate authority to decide whether his client should testify before the grand jury, andproperly denied defendant's request to testify against the advice of his attorney.Defendant's argument "incorrectly equates the right to testify before the grand jury withthe right to testify at trial" (People v Santiago, 72 AD3d 492, 492 [1st Dept 2010],lv denied 15 NY3d 757 [2010]). "[U]nlike certain fundamental decisions aswhether to testify at trial, which are reserved to the defendant . . . withrespect to strategic and tactical decisions like testifying before the grand jury, defendantsrepresented by counsel are deemed to repose decision-making authority in their lawyers"(People v Lasher, 74 AD3d1474, 1476 [3d Dept 2010] [citations and internal quotation marks omitted], lvdenied 15 NY3d 894 [2010]). The strategic decision to testify before the grand juryrequires the "expert judgment of counsel" (People v Colville, 20 NY3d 20, 32 [2012]), because itinvolves weighing the possibility of a dismissal, which, in counsel's judgment, may be[*2]remote, against the potential disadvantages ofproviding the prosecution with discovery and impeachment material, making damagingadmissions, and prematurely narrowing the scope of possible defenses.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations.
We perceive no basis for reducing the sentence. Concur—Renwick, J.P.,Moskowitz, DeGrasse, Manzanet-Daniels and Feinman, JJ.