Opinion
May 10, 2001.
Judgment, Supreme Court, New York County (Harold Beeler, J. on CPL 190.50[c] motion; Leslie Crocker Snyder, J. at jury trial and sentence), rendered April 13, 1999, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years and 1 year, respectively, unanimously affirmed.
Sandra E. Cavazos, for respondent.
Tracy Timbers, for defendant-appellant.
Before: Sullivan, P.J., Rosenberger, Tom, Andrias, Marlow, JJ.
The court properly denied defendant's motion to dismiss the indictment since defendant was afforded a reasonable and meaningful opportunity to testify before the Grand Jury. The record establishes that defendant's failure to testify resulted from the inadequacy of defense counsel's communications with the prosecution concerning the scheduling of defendant's Grand Jury appearance (see, People v. Pearson, 260 A.D.2d 205,lv denied 95 N.Y.2d 801; People v. Cates, 238 A.D.2d 140, lv denied 89 N.Y.2d 1090; People v. Ferrara, 99 A.D.2d 257, 261).
Defendant's claim that he was deprived of a fair trial by the court's conduct is not preserved for appellate review (see, People v. Charleston, 56 N.Y.2d 886), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court's participation served to clarify the testimony (People v. Moulton, 43 N.Y.2d 944). To the extent that the court admonished defense counsel in the presence of the jury, the court later corrected itself and instructed the jury not to construe its remarks as indicating that it had an opinion on the case.
The court properly closed the courtroom during the testimony of the undercover officer. The People sufficiently showed closure was warranted since the officer had ongoing undercover operations in the area of the instant arrest and had been threatened by drug dealers in the past (see,People v. Ayala, 90 N.Y.2d 490, cert denied 522 U.S. 1002).
We perceive no basis for reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.