Opinion
December 26, 1991
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contention that he was denied his right to a public trial by the trial court's closure of the courtroom to the public during the complainant's testimony (see, People v Baxter, 177 A.D.2d 1003; People v Baez, 162 A.D.2d 602, lv denied 76 N.Y.2d 852). We observe, however, that prior to its closure determination, the trial court conducted an in camera interview with the complainant in which it made a careful inquiry to ascertain whether the closure was warranted and, thereafter, sufficiently articulated the reasons for its decision on the record (see, People v Baxter, supra; cf., People v Clemons, 78 N.Y.2d 48).
The trial court erred in admitting the testimony of defendant's ex-wife concerning confidential communications made by defendant to her during the marriage (see, CPLR 4502 [b]; People v Fediuk, 66 N.Y.2d 881; cf., People v Edwards, 151 A.D.2d 987, lv denied 74 N.Y.2d 808); nevertheless, we deem the error harmless. The proof of defendant's guilt was overwhelming and there is no significant probability that the jury would have acquitted defendant had it not been for the error which occurred (see, People v Crimmins, 36 N.Y.2d 230, 242).
The court did not err in the imposition of consecutive sentences on the attempted murder and rape counts because those crimes were separate acts and not "one and the same" (People v Day, 73 N.Y.2d 208; see, Penal Law § 70.25). Finally, we reject defendant's contention that he was deprived of a fair trial because of the Trial Judge's alleged lack of impartiality.