Opinion
June 13, 1995
Appeal from the Supreme Court, New York County (Nicholas Figueroa, J.).
Defendant acted as a steerer by leading the undercover officer to the principals of a cocaine selling operation located in an apartment that appeared to be under the control of one of the principals. All aspects of the actual transaction were conducted by the principals. Defendant never negotiated with the officer, or handled the cash, the contraband or any of the drug selling paraphernalia, and there was no evidence that he had any personal connection with the apartment. The seller told the officer to come back to him and his confederate for future business, pointedly ignoring defendant. Although defendant remained behind when the undercover officer left, presumably to get his tip, he did not linger long in the apartment as he was arrested shortly afterward a block away. When the backup team entered the apartment a half hour later with a battering ram, the window was open, and bystanders directed police in the direction of the principals' flight. Drug paraphernalia and two bags containing in excess of one-half ounce of cocaine were recovered from beneath a table.
We dismiss the counts charging defendant with possession, which were based on an acting-in-concert theory, not the "room presumption", since the evidence of defendant's transitory and fleeting contemporaneous presence in the apartment, while legally sufficient to prove his participation in the sale, was not legally sufficient to prove his exercise of dominion and control over the cache of cocaine that was left behind in the apartment.
No reasonable view of the evidence supported submission of the agency defense to the jury ( People v. Herring, 83 N.Y.2d 780), although the court erred to the extent that it relied on defendant's denial of participation in the crime as an alternative basis not to submit the defense ( cf., People v Butts, 72 N.Y.2d 746, 748-750). To the extent that the Second Department's ruling in People v. Cierzniewski ( 141 A.D.2d 828, lv denied 72 N.Y.2d 1044) reaches a different result on analogous facts, we decline to follow it.
The court's temporary closure of the courtroom during the testimony of the undercover officer did not deprive defendant of his constitutional right to a public trial. The officer's testimony at the Hinton hearing concerning his pending cases and ongoing operations in the general vicinity of the crime, which also was the vicinity of defendant's residence, as well as the ease of transportation between the neighborhood and the courthouse, provided the spatial and temporal factual support for the officer's concerns that an open courtroom would compromise his safety and the integrity of his undercover operations ( see, People v. Martinez, 82 N.Y.2d 436, 443; accord, People v. Tineo, 212 A.D.2d 407; People v. Brown, 178 A.D.2d 280, lv denied 79 N.Y.2d 918; People v. Santos, 154 A.D.2d 284, lv denied 75 N.Y.2d 817), and no further showing was required simply because the exclusion affected a family member ( People v. Sepulveda, 204 A.D.2d 187, lv denied 84 N.Y.2d 1015; People v. Santos, supra).
Finally, with respect to defendant's post-argument submission, his remedy lies in a motion pursuant to CPL article 440.
Concur — Sullivan, J.P., Rosenberger, Wallach, Asch and Williams, JJ.