People v. Brown

• Decision Date: 24 January 1991
• Citation: 169 A.D.2d 934,564 N.Y.S.2d 834
• Parties: The PEOPLE of the State of New York, Respondent, v. Alphonso BROWN, Also Known as Gator Brown, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 834

564 N.Y.S.2d 834

169 A.D.2d 934

The PEOPLE of the State of New York, Respondent, v. Alphonso BROWN, Also Known as Gator Brown, Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 24, 1991.

Eugene P. Grimmick, Troy, for appellant.

James P. Canfield, Dist. Atty. (Karen Eileen Carlson, of counsel), Troy, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, MERCURE and HARVEY, JJ.

MERCURE, Justice.

Appeal from a judgment of the County Court of Rensselaer County (Aison, J.), rendered April 10, 1989, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

On December 29, 1987, Kevin Dash, an undercover agent for the Troy Police Department Special Operations Unit, purchased a quantity of cocaine from defendant. Prior to the drug sale, Dash reviewed a number of photographs at the police station. After the sale, Dash informed the police that he had purchased the cocaine from one of the men in the photographs previously shown to him. Dash then identified defendant from one of the photographs as the one who had sold him the cocaine. A Wade hearing was held and County Court determined that the photographic array was not unduly suggestive and, alternatively, that there existed an independent basis for Dash's in-court identification of defendant. Following a jury trial, defendant was found guilty of criminal sale of a controlled substance in the third degree and sentenced to an indeterminate prison term of 6 to 18 years.

On this appeal, defendant argues that the identification testimony of the police informant was prompted by an unduly suggestive photo array and that County Court erred in refusing to suppress the in-court identification. We disagree. A photographic array is suggestive when some characteristic of one picture draws the viewer's attention in such a way as to indicate that the police have made a particular selection (People v. Emmons, 123 A.D.2d 475, 476, 506 N.Y.S.2d 485, lv. denied 69 N.Y.2d 827, 513 N.Y.S.2d 1033, 506 N.E.2d 544; People v. Shea, 54 A.D.2d 722, 387 N.Y.S.2d 477). An examination of the eight-picture array employed here demonstrates that while defendant was photographed from closer range than the others, neither this difference nor others, including the absence of a height chart (cf., People v. Ryan, 147 A.D.2d 508, 537 N.Y.S.2d 315) and a slightly different background (see, People v. Emmons, supra ), impermissibly drew attention to defendant's photograph.

We also reject defendant's contention that, by closing the courtroom during testimony of an undercover narcotics officer, County Court unconstitutionally deprived him of a public trial. The right to a public trial is not absolute (People v. Hinton, 31 N.Y.2d 71, 73-74, 334 N.Y.S.2d 885, 286 N.E.2d 265, cert. denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273) and may be denied, subject to the discretion of the trial court, to preserve order and decorum in the courtroom and to protect the rights of parties and witnesses (People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769). A courtroom cannot be closed on purely speculative and general concerns relative to the hazards of an undercover officer's occupation (see, People v. Cordero, 150 A.D.2d 258, 541 N.Y.S.2d 417, affd. 75 N.Y.2d 757, 551 N.Y.S.2d 902, 551 N.E.2d 103). However, where, as here, the record demonstrates through the officer's own testimony that he is involved in ongoing narcotics investigations, that he observed weapons in the possession of persons whom he was investigating, and that his safety, as well as the safety of those who worked with him, could be in jeopardy by testimony given in open court, we cannot say that County Court has abused its discretion...