Opinion
September 29, 1994
Appeal from the Supreme Court, New York County (Antonio Brandveen, J.).
The evidence adduced at the Hinton hearing (People v Hinton, 31 N.Y.2d 71), and the court's findings made thereon, adequately satisfied the four-part test for closure of the courtroom during the testimony of an undercover officer set forth in Waller v. Georgia ( 467 U.S. 39) which criteria were incorporated into this State's criminal procedure (People v. Kin Kan, 78 N.Y.2d 54), and more recently were clarified in People v Martinez ( 82 N.Y.2d 436). It is recognized that an overriding law enforcement interest as well as the interests of personal safety may be established by the testimony of the officer that he still has ongoing operations or will be conducting operations in a limited area (supra; see also, People v. Okonkwo, 176 A.D.2d 163, lv denied 79 N.Y.2d 862). In the present case, the officer established that he still had ongoing investigations which he anticipated would lead to buy and bust operations in the vicinity of Broadway between 31st and 33rd Streets, that defendant's accomplice was still at large, and that the officer feared for his safety and for the success of those operations if his identity were revealed to persons in the target area. The overriding interest was sufficiently articulated, and closure was sufficiently restricted to achieve these purposes. To the extent that the defendant presently claims that other, narrower means, could have achieved these results, such suggestions or requests were not made by trial counsel, and the present claim is waived (People v. Okonkwo, supra, at 163).
Concur — Murphy, P.J., Rosenberger, Wallach, Ross and Rubin, JJ.