Paul Skip Laisure, New York, N.Y. (Melissa S. Horlick of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Sullivan & Cromwell LLP [Drew J. Beesley ], of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, SANDRA L. SGROI, JOSEPH J. MALTESE, JJ.
SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.
DECISION & ORDER
Appeal 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.
ORDERED that the judgment is affirmed.
Contrary 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, 760 N.Y.S.2d 753, 790 N.E.2d 1182 ; People v. Edwards, 65 A.D.3d 1374, 1375, 887 N.Y.S.2d 141 ; People v. Stover, 36 A.D.3d 837, 837, 831 N.Y.S.2d 183 ). Closure of the courtroom "is an exceptional authority that must be ‘sparingly exercised’ " ( People v. Kin Kan, 78 N.Y.2d 54, 57, 571 N.Y.S.2d 436, 574 N.E.2d 1042, quoting People v. Hinton, 31 N.Y.2d 71, 76, 334 N.Y.S.2d 885, 286 N.E.2d 265 ). 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, 104 S.Ct. 2210, 81 L.Ed.2d 31 ; see People v. Frost, 100 N.Y.2d at 137, 760 N.Y.S.2d 753, 790 N.E.2d 1182 ).
Here, 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, 760 N.Y.S.2d 753, 790 N.E.2d 1182 ; People v. Ming Li, 91 N.Y.2d 913, 917, 669 N.Y.S.2d 527, 692 N.E.2d 558 ; People v. Dawson, 130 A.D.3d 750, 751, 13 N.Y.S.3d 235 ; People v. Edwards, 65 A.D.3d at 1375, 887 N.Y.S.2d 141 ; People v. Stover, 36 A.D.3d at 837, 831 N.Y.S.2d 183 ). 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, 669 N.Y.S.2d 527, 692 N.E.2d 558 ). 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, 104 S.Ct. 2210 ; People v. Echevarria, 21 N.Y.3d 1, 15, 966 N.Y.S.2d 747, 989 N.E.2d 9 ; People v. Dawson, 130 A.D.3d at 751, 13 N.Y.S.3d 235 ).
We 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, 567 N.Y.S.2d 548, affd 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 ). 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, 584 N.Y.S.2d 428, 594 N.E.2d 922 ), 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, 22 N.Y.S.3d 691 ; People v. Coleman, 78 A.D.3d 457, 458, 910 N.Y.S.2d 69 ; cf. People v. Franzese, 154 A.D.3d 706, 61 N.Y.S.3d 661 ; People v. Thomas, 139 A.D.3d 764, 30 N.Y.S.3d 687 ; People v. Watson, 121 A.D.3d 921, 993 N.Y.S.2d 384 ; People v. Alleyne, 114 A.D.3d 804, 979 N.Y.S.2d 845 ; People v. Ruiz, 7 A.D.3d 737, 777 N.Y.S.2d 193 ). 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, 22 N.Y.S.3d 691 ; see People v. Coleman, 78 A.D.3d at 458, 910 N.Y.S.2d 69 ; cf. People v. Russell, 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 ).
Nevertheless, 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, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
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