People v. Simmons , 633 N.Y.S.2d 49 ( 1995 )

—Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Sherman, J.), rendered March 29, 1993, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, under Indictment No. 12322/92, upon a jury verdict, and imposing sentence, and (2) two amended judgments of the same court, both also rendered March 29, 1993, revoking sentences of probation previously imposed by the same court, upon a finding that he had violated conditions thereof, after a hearing, and imposing sentences of imprisonment upon his previous convictions of criminal sale of a controlled substance in the fifth degree under Indictment No. 10397/92, and criminal possession of a controlled substance in the fifth degree under Indictment No. 10779/92.

Ordered that the judgment and the amended judgments are affirmed.

The defendant’s contention that he received ineffective assistance of counsel because his trial lawyer did not oppose the People’s motion to close the courtroom during the testimony of an undercover police officer is without merit. The defendant himself agreed not to oppose closure because he had no one to attend the trial with him. The trial court asked the defendant if he understood the right he was waiving; the defendant said he did. Furthermore, the trial court conducted a brief hearing pursuant to People v Hinton (31 NY2d 71) and the elements necessary to support closure were established at the hearing (see, People v Martinez, 82 NY2d 436). Accordingly, the trial counsel’s failure to oppose closure did not constitute ineffective assistance of counsel (see, People v Garcia, 75 NY2d 973).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are unpreserved for appellate review or without merit. Mangano, P. J., Balletta, Pizzuto and Santucci, JJ., concur.