Opinion
14060 5871/10
01-19-2016
The PEOPLE of the State of New York, Respondent, v. Lasean SYKES, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel) and Devoise & Plimpton LLP, New York (Jared Kagan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel) and Devoise & Plimpton LLP, New York (Jared Kagan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Manu K. Balachandran of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered April 5, 2012, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of three years, unanimously affirmed.
Since defendant's claim under People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) involves a jury note that the court read into the record in full before responding, thereby providing counsel with notice of its specific contents, defendant's claim is not exempt from preservation requirements (see People v. Nealon, 26 N.Y.3d 152, 20 N.Y.S.3d 315, 41 N.E.3d 1130 2015; People v. Williams, 21 N.Y.3d 932, 934–935, 969 N.Y.S.2d 421, 991 N.E.2d 195 2013; compare People v. Silva, 24 N.Y.3d 294, 998 N.Y.S.2d 154, 22 N.E.3d 1022 2014 [nondisclosures of notes were mode of proceedings errors] ). We decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find that defendant was not prejudiced by the lack of full compliance with the O'Rama procedures.
The evidence at a Hinton hearing established an overriding interest that warranted a limited closure of the courtroom (see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 1984 ). An undercover officer's testimony that, among other things, he was still working undercover in the vicinity of defendant's arrest, was the type of showing that has consistently been held to demonstrate a substantial probability that the officer's undercover status and safety would be jeopardized by testifying in an open courtroom (see People v. Echevarria, 21 N.Y.3d 1, 12–14, 966 N.Y.S.2d 747, 989 N.E.2d 9 2013 ). Although the court did not explicitly discuss on the record alternatives to closing the courtroom, the record sufficiently demonstrates that the court fulfilled its obligation under Waller to consider such alternatives, and it can be implied that the court determined that no lesser alternative would suffice (see Echevarria, 21 N.Y.3d at 14–19, 966 N.Y.S.2d 747, 989 N.E.2d 9 2013 ).
MAZZARELLI, J.P., ACOSTA, RENWICK, RICHTER, JJ., concur.