People v. Acevedo

• Decision Date: 07 May 2009
• Docket Number: 511.,512.
• Citation: 62 A.D.3d 464,878 N.Y.S.2d 327,2009 NY Slip Op 03673
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BENITO ACEVEDO, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDDIE COTTO, Appellant.
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 464

878 N.Y.S.2d 327

2009 NY Slip Op 03673

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BENITO ACEVEDO, Appellant.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EDDIE COTTO, Appellant.

511.

512.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 7, 2009.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered November 14, 2006, convicting defendant Acevedo, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior conviction was a violent felony, to concurrent terms of six years, unanimously affirmed. Judgment, same court, (Rena K. Uviller, J., at suppression hearing; Renee A. White, J., at jury trial and sentence), rendered November 28, 2006, convicting defendant Cotto of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to concurrent terms of six years, unanimously affirmed.

Defendants did not preserve any claim that the court's ruling permitting the two undercover detectives to testify under their shield numbers violated defendants' constitutional rights, including their right of confrontation. At a Hinton hearing (People v Hinton, 31 NY2d 71 [1972], cert denied 410 US 911 [1973]), defendants stated their opposition to closure of the courtroom. In that connection, defendants expressed, at most, a perfunctory opposition to concealment of the officers' names. In particular, neither defendant asserted any need to know the officers' names for purposes of impeachment or investigation. Accordingly, defendants' present constitutional arguments (see Smith v Illinois, 390 US 129 [1968]), including Cotto's pro se claim, are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits (see United States v Rangel, 534 F2d 147, 148 [9th Cir 1976], cert denied 429 US 854 [1976]). The People's showing of an overriding interest justifying partial closure of the courtroom also satisfied their burden, under People v Waver (3 NY3d 748 [2004]), of establishing a need for the officers' anonymity. Moreover, in addition to that showing, both officers provided particularized explanations for their fear of disclosing their true names to defendants and their relatives. Defendants have not established that learning the officers' true names, as opposed to their shield numbers, would have had any impeachment or investigatory value (see People v Washington, 40 AD3d 228 [2007], lv denied 9 NY3d 927 [2007]).

We reject defendant Cotto's challenges to the sufficiency and weight of the evidence against him (see People v Danielson, 9 NY3d 342, 348-349 [2007])....