By: Shulman, P.J., Edmead, JJ. 14-022. THE PEOPLE OF THE STATE OF NEW YORK, res, v. HENRY JERMAN, def-app — Judgment of conviction (James M. Burke, J.), rendered March 14, 2013, affirmed. Defendant’s challenge to the closure of the courtroom during the undercover officer’s testimony is partially unpreserved and, in any event, without merit. Closure was proper since the officer’s testimony at the Hinton hearing (People v. Hinton, 31 NY2d 71 [1972], cert den 410 US 911 [1973]) demonstrated that he expected to continue working undercover in the vicinity of defendant’s arrest, and that testifying at trial in an open courtroom would compromise his undercover work and jeopardize his safety (see People v. Echevarria, 21 NY3d 1, 11 [2013], cert denied 571 US 1111 [2013]; People v. Jones, 96 NY2d 213, 220 [2001]; People v. Ramos, 90 NY2d 490, 498 [1997], cert denied 522 US 1002 [1997]). Moreover, the trial court adopted a reasonable alternative to complete closure of the courtroom by allowing the defendant to make an application for the presence of family members who might wish to attend and made findings which adequately supported the determination to close the courtroom (see People v. Mickens, 82 AD3d 430 [2011], lv denied 17 NY3d 798 [2011], cert denied 565 US 990 [2011]). We note that defense counsel never requested that her supervisor be permitted to watch the undercover’s testimony and her contention that her supervisor was not permitted to enter the courtroom during such testimony was untimely raised for the first time after the People had rested. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
By: Ling-Cohan, J.P., Cooper, JJ. 14-377. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ELIJAH AVIANDO, def-app — Judgment of conviction (Kevin B. McGrath, J.), rendered September 20, 2013, reversed, on the law and facts and as a matter of discretion in the interest of justice, the motion to suppress granted and the accusatory instrument dismissed. A suspect is in custody when “a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave” (People v. Paulman, 5 NY3d 122, 129 [2005]). As defendant was handcuffed by police at the time he gave the statement at issue, he was obviously in custody for Miranda purposes (see People v. Perry, 97 AD3d 447, 448 [2012]). The record also demonstrates that the statement that the handcuffed defendant made to the officer, after the officer heard complainant’s accusation against defendant, was the result of the functional equivalent of interrogation and should have been suppressed (see People v. Torres, 172 AD3d 758, 761 [2019]; People v. Perry, 97 AD3d at 448; see also People v. Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985]). Nor can the error be viewed as harmless, since the finding of guilt rested squarely on the court’s assessment of the credibility of the complainant and the defendant, and the proof of defendant’s guilt was not overwhelming. Inasmuch as defendant has served his sentence, and the record does not demonstrate that further proceedings on the second-degree harassment charge would serve any compelling “penological purposes” (People v. Allen, 39 NY2d 916, 918, [1976]), we dismiss the accusatory instrument (see People v. Flynn, 79 NY2d 879, 882 [1992]; People v. Burwell, 53 NY2d 849, 851 [1981]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
