- April 10, 2018
Skip Laisure, New York, NY (Melissa S. Horlick of counsel),
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove,
Sholom J. Twersky, and Sullivan & Cromwell LLP [Drew J.
Beesley], of counsel), for respondent.
D. SCHEINKMAN, P.J. SHERI S. ROMAN SANDRA L. SGROI JOSEPH J.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Michael A. Gary, J.), rendered April 20, 2015,
convicting him of criminal possession of a weapon in the
second degree and assault in the second degree, upon a jury
verdict, and imposing sentence.
that the judgment is affirmed.
to the defendant's contention, under the circumstances of
this case, he was not denied his right to a public trial by
the Supreme Court's exclusion of his family members from
the courtroom during the complainant's testimony (see
People v Frost, 100 N.Y.2d 129, 137; People v
Edwards, 65 A.D.3d 1374, 1375; People v Stover,
36 A.D.3d 837, 837). Closure of the courtroom "is an
exceptional authority that must be 'sparingly
exercised"' (People v Kin Kan, 78 N.Y.2d
54, 57, quoting People v Hinton, 31 N.Y.2d 71, 76).
The party seeking that remedy "must advance an
overriding interest that is likely to be prejudiced, the
closure must be no broader than necessary to protect that
interest, the trial court must consider reasonable
alternatives to closing the proceeding, and it must make
findings adequate to support the closure''
(Waller v Georgia, 467 U.S. 39, 48; see People v
Frost, 100 N.Y.2d at 137).
an overriding interest was sufficiently established through
evidence, and reasonable inferences to be drawn therefrom, of
the complainant's genuine fear of testifying in the
presence of members of his community, including the
defendant's family members (see People v Frost,
100 N.Y.2d at 137; People v Ming Li, 91 N.Y.2d 913,
917; People v Dawson, 130 A.D.3d 750, 751;
People v Edwards, 65 A.D.3d at 1375; People v
Stover, 36 A.D.3d at 837). Moreover, the scope of the
closure was no broader than was necessary. The Supreme Court
limited the closure to the defendant's family members,
some of whom the defendant and the complainant had contact
with regarding the complainant's testimony, prior to the
complainant's appearance in court (see People v Ming
Li, 91 N.Y.2d at 917). Finally, the record shows that
the court, in directing the exclusion at issue, determined
that no lesser alternative would protect the interest at
stake (see Waller v Georgia, 467 U.S. at 48;
People v Echevarria, 21 N.Y.3d 1, 15; People v
Dawson, 130 A.D.3d at 751).
disagree with the Supreme Court's ruling permitting a
police detective to testify that, in his opinion, the
defendant was the person depicted in surveillance video
footage. Generally, "lay witnesses must testify only to
the facts and not to their opinions and conclusions drawn
from the facts, '' as it is the jury's province
"to draw the appropriate inferences arising from the
facts'' (People v Russell, 165 A.D.2d 327,
332, affd 79 N.Y.2d 1024). While, under the proper
circumstances, the court has the discretion to allow a lay
witness to express his or her opinion that an individual
depicted in a surveillance video is the defendant (see
People v Russell, 79 N.Y.2d 1024), here, there was no
basis for concluding that the police detective was more
likely than the jury to correctly determine whether the
defendant was depicted in the video (see People v
Myrick, 135 A.D.3d 1069, 1074 n 2; People v
Coleman, 78 A.D.3d 457, 458; cf. People v
Franzese, 154 A.D.3d 706; People v Thomas, 139
A.D.3d 764; People v Watson, 121 A.D.3d 921;
People v Alleyne, 114 A.D.3d 804; People v
Ruiz, 7 A.D.3d 737). The detective had arrested the
defendant more than two weeks after the crime, and, at that
time, briefly interviewed the defendant. "There was no
evidence that [the] defendant had changed his appearance
prior to trial, and the record is devoid of any other
circumstances suggesting that the jury-which had ample
opportunity to view [the] defendant-would be any less able
than the detective to determine whether [the] defendant was,
in fact, the individual depicted in the video"
(People v Myrick, 135 A.D.3d at 1074 n 2; see
People v Coleman, 78 A.D.3d at 458; cf. People v
Russell, 79 N.Y.2d 1024).
the error was harmless. The evidence of the defendant's
guilt without reference to the error-which evidence included
an identification by the complainant, who was familiar with
the defendant, and the defendant's statements to law
enforcement officials-was overwhelming, and, particularly
given the limiting instruction provided by the Supreme Court,
there was no significant probability that the error might
have contributed to the defendant's convictions (see
People v Crimmins, 36 N.Y.2d 230, 241-242).
sentence imposed was not excessive (see People v