People v. Lugo , 650 N.Y.S.2d 102 ( 1996 )

—Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered April 29, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to a term of 41/2 to 9 years and to time served, respectively, unanimously affirmed.

Defendant’s present Sandoval argument was expressly waived and is without merit. We note that defendant’s trial counsel specifically requested a Sandoval compromise ruling in connection with defendant’s lengthy criminal history, and that the court’s Sandoval ruling constituted an appropriate exercise of discretion (see, People v Bennette, 56 NY2d 142, 147).

Defendant’s contention that the courtroom was improperly closed during the testimony of an undercover officer is unpreserved because, at the Hinton hearing, defendant raised none of the arguments he now raises on appeal. We decline to review this claim in the interest of justice. Were we to consider it, we would find it without merit since closure of the courtroom was properly based upon the officer’s testimony that he was actively engaged in on-going undercover operations in the area of the instant arrest (see, People v Martinez, 82 NY2d 436, 443) and had been threatened by drug dealers in the past. To the extent that the facts of this case may fall within the parameters of both Martinez (supra), and the Second Circuit’s recent conflicting holding in Ayala v Speckard (89 F3d 91), we note that where there is a conflict between the decisional law of the Court of Appeals and that of an intermediate Federal appellate court on a constitutional issue, the ruling of the State Court of Appeals should be followed (People v Joseph, 85 AD2d 546).

Defendant’s argument concerning the adequacy of the court’s supplemental instructions is unpreserved and without merit. Concur—Sullivan, J. P., Rosenberger, Kupferman, Tom and Mazzarelli, JJ.