People v. Mazzariello

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 28, 1999, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 25 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence. Issues concerning identification and credibility were properly considered by the jury and there is no basis for disturbing its determinations (see People v Gaimari, 176 NY 84, 94).

Defendant’s public trial claim is both unpreserved and expressly waived, and we decline to review it in the interest of justice. After defendant called a police officer as a defense witness, and the officer informed the court that he was performing undercover duties and wished the courtroom to be closed for his testimony, defendant expressly waived any objection. In any event, the court conducted a Hinton hearing nonetheless, and the officer’s testimony sufficiently established a substantial probability that his safety and effectiveness could be prejudiced if he testified in open court (see People v Ramos, 90 NY2d 490, cert denied sub nom. Ayala v New York, 522 US 1002), notwithstanding that the instant robbery case had nothing to do with his undercover work. Contrary to defendant’s argument, it is of no moment that the initial request for closure came from the officer himself rather than one of the parties.

We perceive no basis for a reduction of sentence. Concur— Andrias, J.P., Rosenberger, Marlow and Gonzalez, JJ.