Rosemary Herbert, Office of the Appellate Defender, New York
(Matthew A. Wasserman of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Ryan Gee of
counsel), for respondent.
Friedman, J.P., Webber, Gesmer, Kern, JJ.
Supreme Court, New York County (Arlene D. Goldberg, J.),
rendered December 9, 2014, convicting defendant, after a jury
trial, 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 drug offender, to an aggregate term of six
years, unanimously affirmed.
court properly denied defendant's request for an agency
charge. There was no reasonable view of the evidence, viewed
most favorably to defendant, that he acted solely on behalf
of the buyer (see People v Echevarria, 21 N.Y.3d 1,
20 ; People v Lam Lek Chong, 45 N.Y.2d 64,
74-75 , cert denied 439 U.S. 935');">439 U.S. 935 ;
People v Vaughan, 300 A.D.2d 104');">300 A.D.2d 104 , lv denied
99 N.Y.2d 633');">99 N.Y.2d 633 ). Defendant's behavior was
completely consistent with that of a participant in a
drug-selling enterprise. There was no evidence he was doing
"a favor for a friend" (Lam Lek Chong, 45
N.Y.2d at 74), or "of any conversation between defendant
and the undercover purchaser as to why the latter needed or
wanted to be represented by an agent' instead of simply
buying his own drugs" (Vaughan, 300 A.D.2d at
104). The fact that the undercover officer initiated the
transaction by asking defendant if he could "get"
him some drugs was not even slight evidence to support an
agency defense, because there was no reasonable basis for the
jury to view this as anything but a customer asking a
salesperson to "get" him some merchandise.
court properly denied defendant's application pursuant to
Batson v Kentucky (476 U.S. 79');">476 U.S. 79 ). Initially,
we note that defendant expressly withdrew his Batson
claim as to one of the two prospective jurors at issue on
appeal, rendering any ruling as to that panelist superfluous.
In any event, the prosecutor explained that she challenged
the panelists because they did not appear to be "engaged
in the process" or "paying attention, " which
was a single, race-neutral reason based both on the
panelists' recorded responses and their demeanor. The
record supports the court's finding that this reason was
not pretextual, and this finding is entitled to great
deference (see People v Hernandez, 75 N.Y.2d 350');">75 N.Y.2d 350
, affd 500 U.S. 352');">500 U.S. 352 ). Defendant's
claims that the prosecutor did not challenge panelists who
were similarly situated and that the court failed to make
specific findings regarding demeanor are unpreserved, and we
decline to review them in the interest of justice. As an
alternative holding, we reject them on the merits. Defense
counsel did not dispute the prosecutor's description of
the panelists' demeanor, and no express finding by the
court was required under the circumstances (see Thaler v
Haynes, 559 U.S. 43, 48-49 ). The record fails to
support defendant's claim of disparate treatment.
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');">467 U.S. 39 ;
People v Echevarria, 21 N.Y.3d at 12-14). The
undercover officer gave testimony of a type 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" (People v Gonzalez, 145 A.D.3d 586');">145 A.D.3d 586
[1st Dept 2016], lv denied28 N.Y.3d 1184');">28 N.Y.3d 1184 ),
and it satisfied the requirement of a particularized showing.
The record also sufficiently shows that the court fulfilled
its obligation to consider alternatives to closure, and