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People v. Hecker

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 3, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSEPH HECKER, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered July 14, 2008, 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 whose prior felony conviction was a violent felony, to a term of 6 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Andrias, Nardelli, Richter, JJ.

5770/07

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning identification and credibility. Two officers easily recognized defendant six days after the sale, when they saw him standing in front of the same store where the sale had occurred.

The court properly granted the People's Batson application (Batson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The record supports the court's finding that the race-neutral reasons provided by defense counsel for the peremptory challenge at issue were pretextual, and this finding is entitled to great deference (see People v Hernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]). Counsel's failure to question the panelist was a significant indicator of pretext under the circumstances (see e.g. People v Kidkarndee, 41 AD3d 247 [2007], lv denied 9 NY3d 923 [2007]). Defendant did not preserve his contention that the court failed to follow the required three-step procedure (see People v Richardson, 100 NY2d 847, 853 [2003]), and we decline to review in the interest of justice. As an alternative holding, we reject the claim. In particular, it was permissible for the court to find that defense counsel's race-neutral reasons were pretextual without hearing from the prosecutor (see People v Payne, 88 NY2d 172, 184 [1996]).

The People made a proper showing under Waller v Georgia (467 US 39 [1984]) to justify closure of the courtroom during the testimony of an undercover officer. Although the officer was no longer working in the area of defendant's arrest, testimony in an open courtroom still posed a serious risk to his safety, particularly because of the large number of cases he had pending that were likely to be calendared at the same courthouse.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091203

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