People v. Wilkerson

• Decision Date: 03 April 2012
• Citation: 2012 N.Y. Slip Op. 02434,941 N.Y.S.2d 125,94 A.D.3d 423
• Parties: The PEOPLE of the State of New York, Respondent, v. Armstrong WILKERSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02434

94 A.D.3d 423

941 N.Y.S.2d 125

The PEOPLE of the State of New York, Respondent,

v.Armstrong WILKERSON, Defendant–Appellant.

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

April 3, 2012.

Richard M. Greenberg, Office of Appellate Defender, New York (Lauren Stephens–Davidowitz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.

FRIEDMAN, J.P., DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 24, 2010, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and two counts of 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.

The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations.

The court properly exercised its discretion in denying defendant's motion, made pursuant to County Law § 722–c, for authorization of an independent analysis of the narcotics evidence. Other than the fact that this was a drug case, defendant offered only “vague and speculative” reasons for independent drug testing ( see People v. Coleman, 45 A.D.3d 432, 433, 846 N.Y.S.2d 53 [2007], lv. denied 10 N.Y.3d 763, 854 N.Y.S.2d 324, 883 N.E.2d 1259 [2008] ), and his present argument relies on matters outside the record that were never presented to the trial court. Furthermore, although defendant challenged the credibility of the officers involved in his case, there was no issue at trial concerning the identity or weight of the substances defendant allegedly sold and possessed. Accordingly, the court's ruling did not deprive defendant of a fair trial or the right to present a defense.

The evidence at the Hinton hearing established an overriding interest that warranted a limited closure of the courtroom during an undercover officer's testimony ( see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984]; People v. Ramos, 90 N.Y.2d 490, 497, 662 N.Y.S.2d 739, 685 N.E.2d 492 [1997], cert. denied sub nom. Ayala v. New York, 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413 [1997] ), and the closure order did not violate defendant's right to a public trial. The People made a sufficiently particularized showing that the officer's safety and effectiveness would be jeopardized by testifying in an open courtroom ( see e.g. People v. Plummer, 68 A.D.3d 416, 417, 889 N.Y.S.2d 572 [2009], lv. denied 14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014 [2010]. Furthermore, the court implicitly or explicitly considered alternatives to full closure, including those proposed by the People ( see Presley v. Georgia, 558 U.S. ––––, ––––, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 [2010]; People v. Mickens, 82 A.D.3d 430, 917 N.Y.S.2d 630 [2011], lv. denied 17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101 [2011], cert. denied 565 U.S. ––––, 132 S.Ct. 527, 181 L.Ed.2d 370 [2011] ). Instead of ordering a complete closure, the court permitted defendant's relatives to attend. Defendant objected to the closure ruling only to the extent it excluded his niece's friend from the courtroom. However, defendant made no showing that he had a “tie of more significance than ordinary friendship” with this person ( People v. Nazario, 4 N.Y.3d 70, 74, 790 N.Y.S.2d 628, 823 N.E.2d 1274 [2005] ). Defendant did not preserve his claim that the court failed to make sufficient findings to support its closure order ( see People v. Doster, 13 A.D.3d 114, 115, 786 N.Y.S.2d 166 [2004], lv. denied, 4 N.Y.3d 763, 792 N.Y.S.2d 6, 825 N.E.2d 138 [2005] ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits ( see id.).

The testimony adduced by the People at the Hinton hearing, demonstrating a need for partial closure of the courtroom, also met their burden of...