People v. Glover ( 1998 )

—Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered February 6, 1996, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, affirmed.

Since the defendant failed to specifically identify his brother and sister in seeking to limit the court’s order closing the courtroom during the testimony of an undercover officer, the defendant’s present Hinton claim is unpreserved.

Initially, the undercover’s Hinton hearing testimony provided ample grounds for the court to determine that closure of the courtroom to the general public during the officer’s testimony was necessary for his safety and effectiveness (see, People v Ramos, 90 NY2d 490, 499, cert denied sub nom. Ayala v New York, 522 US 1002). He stated that for two years he had been working as an undercover officer in the Midtown North and Midtown South precincts, that he had worked in the specific area of defendant’s sale in the week prior to trial, that he had two open cases stemming from operations in the area for which arrests had not yet been made, that he had received threats in the past from drug sellers in the area of defendant’s arrest, and that he had used the Judges’ entrance to the courthouse the day of the hearing and dressed in plainclothes so that he could not be identified.

Nevertheless, defendant’s counsel asserted that the closure order should be limited in that defendant’s “family at the very least” should be allowed to attend the trial.

The court, noting that neither defendant’s mother nor any other spectator had yet attended the trial, ruled that it would permit defendant’s mother to attend the trial unless the People could prove that she posed a threat to the undercover. In response, defense counsel asked, ‘You are saying just the mother, judge, not any other family members?” The court responded affirmatively and defense counsel said nothing further on the subject.

It is defendant’s position that he was denied his right to a public trial as a result of the application of the closure order to his family during the undercover’s testimony. Specifically, he contends that the People failed to establish that his brother or sister, in particular, would be a threat to the undercover’s safety.

It is noteworthy that no family member had attended the trial up to that point, and therefore the trial court had no independent basis of knowledge as to the identity of any interested family members. Nor is there any indication in the record that defendant’s brother and sister actually wanted or tried to attend the trial (see, People v Vargas, 236 AD2d 258, lv denied 90 NY2d 865). The only specific reference to particular family members in the entire interchange was defense counsel’s tentative comment that “in the past, defendant’s mother and I believe, brother and sister” had attended some of his court appearances (emphasis supplied). Under such circumstances, the request that defendant’s “family” be allowed to attend the trial constituted at best a vague suggestion that some might wish to attend. Such a broad and vague request does not sufficiently raise the issue in order to preserve it for our review (see, People v Ford, 235 AD2d 285, lv denied 89 NY2d 1035). Moreover, the record reflects counsel’s acquiescence in the ruling, additionally undermining defendant’s claim of preservation.

Upon the People’s demonstration that closure of the courtroom was necessary, it was defendant’s responsibility to specifically suggest reasonable alternatives to closure (see, People v Ramos, supra, at 504; People v Ford, 235 AD2d 285, supra). If the People are to be required to prove that a threat is posed by the individuals whose admission to the courtroom defendant seeks (see, People v Kin Kan, 78 NY2d 54, 58), the defendant should in turn be required to specify exactly which individuals he seeks to admit, by name and relationship to him. Defendant here never specifically stated that he wished his brother and sister to be excluded from the closure order and permitted to attend the trial.

Because defendant’s proposed alternative to complete closure of the courtroom failed to specifically identify defendant’s brother and sister, the present Hinton claim is unpreserved and unreviewable. Additionally, we perceive no considerations warranting review in the interest of justice. Concur — Tom, Andrias and Saxe, JJ.