p. 61The People of the State of New York, Respondent, v James Glover, Appellant.
p. 62POINTS OF COUNSEL
David S. Jacobs for appellant.
I. The trial court committed reversible error in refusing a defense request for a charge oh criminal facilitation in the second degree as a lesser included offense of criminal sale of a controlled substance. (People v Scarborough, 49 NY2d 364 ; People v Henderson, 41 NY2d 233 ; People v Lewis, 68 AD2d 862 ; People v Sexton, 50 AD2d 842 ; People v Velez, 77 AD2d 928 .) II. Appellant’s constitutional right to a public trial was abridged by the court’s sealing of the courtroom, over defense objection. (People v Hinton, 31 NY2d 71 ; People v Boyd, 59 AD2d 558 ; People v Castro, 63 AD2d 891 ; People v Richards, 48 AD2d 792 ; People v Jelke, 308 NY 56 ; People v Jones, 47 NY2d 409 .) III. The prosecutor’s misconduct served to prejudice appellant and deprive him of his Sixth Amendment right to a fair trial. (People v Malagon, 50 NY2d 954 ; People v Salko, 47 NY2d 230 ; Bruton v United States, 391 US 123 ; People v Billingsley, 74 AD2d 645 ; People v Yant, 75 AD2d 653 ; People v Sossa, 70 AD2d 814 ; People v Lizzarra, 70 AD2d 572 ; People v Demko, 71 AD2d 608 ; United States v De Vaughn, 601 F2d 42 ; People v Alston, 77 AD2d 906 .)Elizabeth Holtzman, District Attorney {Karen M. Wigle of counsel), for respondent.
I. Appellant’s request for a charge of criminal facilitation as a lesser included offense of criminal sale of a controlled substance was not supported by any reasonable view of the evidence and, therefore, was
p. 63properly denied. (People v Miguel, 53 NY2d 920 ; People v Greer, 42 NY2d 170 ; People v Richette, 33 NY2d 42 ; People v Discala, 45 NY2d 38 ; People v Valentin, 73 AD2d 558 ; People v Scarborough, 49 NY2d 364 ; People v Mussenden, 308 NY 558 ; People v Gordon, 32 NY2d 62 ; People v Harrison, 71 Misc 2d 782 ; People v Argibay, 45 NY2d 45 .) II. The trial court’s decision to exclude the public from the courtroom during the testimony of the undercover officer was based on evidence adduced at a hearing and completely proper. (People v Hinton, 31 NY2d 71 , 410 US 911 ; People v Jones, 82 AD2d 674 ; United States ex rel. Lloyd v Vincent, 520 F2d 1272 ; Richmond Newspapers v Virginia, 448 US 555 ; United States v Bell, 464 F2d 667 , 409 US 991 ; United States ex rel. Orlando v Fay, 350 F2d 967 , cert den sub nom. Orlando v Follette, 384 US 1008 ; People v Rodriquez, 56 AD2d 582 ; People v Rickenbacker, 50 AD2d 566 ; People v Jones, 47 NY2d 409 ; People v Roberto, 67 AD2d 687 .) III. The trial court’s evidentiary rulings were correct, the prosecutor’s summation was proper and any claims of error arising out of the prosecutor’s summation have not been preserved for appellate review. (People v Montanez, 41 NY2d 53 ; People v Gines, 36 NY2d 932 ; People v Vails, 43 NY2d 364 ; People v Rastelli, 37 NY2d 240 , 423 US 995 ; People v Luciano, 277 NY 348 ; Dewey v Moyer, 72 NY 70 ; Cuyler v McCartney, 40 NY 221 ; Dutton v Evans, 400 US 74 ; People v Pontani, 33 AD2d 688 ; People v Plummer, 36 NY2d 161 .)OPINION OF THE COURT
To establish entitlement to a lesser included offense charge, the defendant must make two showings. First, it must be shown that the additional offense that he desires to have charged is a “lesser included offense”, i.e., that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense. That established, the defendant must then show that there is a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser offense but not the greater.
p. 64The first requirement — that it is theoretically impossible to commit the greater crime without at the same time committing the lesser — is mandated by the provisions of CPL 1.20 (subd 37) and is determined by a comparative examination of the statutes defining the two crimes, in the abstract. The second, sequential requirement, prescribed by CPL 300.50 (subd 1), calls for an assessment of the evidence of the particular criminal transaction in the individual case and a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater. This is the manner in which we have recently recognized that this two-pronged test is to be applied
(People v Ramirez, 55 NY2d 708 ;
People v Miguel, 53 NY2d 920 ). To the extent that our decisions in
People v Johnson (
39 NY2d 364 ),
People v Cionek (
35 NY2d 924 ), and
People v Hayes (
35 NY2d 907 ), which resolved the first inquiry as to whether the lesser crime was an included offense by examination only of the criminal transaction on which the particular prosecution was predicated — and
People v Stanfield (
36 NY2d 467 ) insofar as it cites
Cionek and
Hayes with approval at page 472 — may be read as at variance with this application, they are no longer to be followed. Thus, it must now be shown that, in theory, the charged, greater crime could not be committed without the lesser offense also being committed and, additionally, that in the particular case the jury would be warranted in finding that the defendant committed the lesser but not the greater crime.
Turning to the case now before us, we reject defendant’s contention that it was error for the trial court to have denied his request that criminal facilitation in the second degree (Penal Law, § 115.05) be charged as a lesser included offense of the charge of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41, subd 1). Comparative examination of these two statutes discloses that it would be theoretically possible for a defendant illegally to sell a drug without intending to aid anyone else in the commission of a class A felony (as, for instance, when the criminal transaction involved only the defendant and an undercover police buyer). Inasmuch as
p. 65defendant here is thus unable to satisfy the first prong of the test, it is immaterial whether there is a reasonable view of the evidence in this particular case that would support a finding that he committed the crime of criminal facilitation in the second degree but not the crime of criminal sale of a controlled substance in the second degree. Accordingly, it was not error to have refused defendant’s request to charge.
We also reject defendant’s submission that it was an abuse of discretion for the trial court, after a hearing to have closed the trial to the public during the testimony of the undercover agent who was then still actively engaged in narcotics investigation.
We have examined defendant’s other contentions and find them to be without merit.
For the reasons stated the order of the Appellate Division should be affirmed.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.
Order affirmed.