People v. Garcia

OPINION OF THE COURT

Tom, J. P.

Defendant was convicted of criminal sale and possession of a controlled substance arising out of a buy-and-bust operation by an undercover officer at 136th Street and Amsterdam Avenue in Manhattan. The only basis on which reversal is required concerns the outcome of the Hinton hearing and the consequences for appeal, in which regard we are constrained by Court of Appeals authority.

During jury selection, the prosecutor indicated that she would seek closure of the courtroom during the testimony of the undercover officer and the ghost officer. Defense counsel objected, indicating that defendant’s girlfriend and uncle were present and wanted to attend the entire trial. The court indicated that it would rule on that issue after conducting a Hinton hearing. However, the court also indicated that it would either grant or deny the closure motion in toto, and thus declined to consider less restrictive alternatives. Two hearings were held, one for the undercover officer and one for the ghost officer. The first hearing commenced the same day that the objection was made, and continued the following day; the second hearing was shortly thereafter. The girlfriend and uncle apparently attended each day. At the hearings, although the officers testified to their fear of being recognized in open court, their continued, albeit sporadic, presence in the vicinity of the arrest, and the procedures they took to enter and leave court surreptitiously, no evidence was adduced regarding the specific objection raised by counsel: that defendant’s girlfriend and uncle wanted to attend the entire trial. As noted, the court granted the closure motion in toto excluding both defendant’s girlfriend and uncle.

The analysis of closure cases derives from the four-part standard of Waller v Georgia (467 US 39, 48). The movant must advance an overriding interest that is likely to be prejudiced if closure is not ordered; the closure must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closure; and the trial court must make findings adequate to support closure (supra). As the Court of Appeals characterizes the fundamental right to an open trial, it is not absolute, and although it may yield to other interests “in rare circumstances only” there remains a “presumption of openness” (People v Ayala, 90 NY2d 490, 497, cert denied 522 US 1002).

Further, “no closing can be tolerated that is not preceded by an inquiry careful enough to assure the court that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons” (People v Jones, 47 NY2d 409, 414-415, cert denied 444 US 946).

At the outset, defendant’s reference to a specified family member — and here his girlfriend should be accorded the same status as a family member (People v Green, 215 AD2d 309)— who has a “clear and definite desire to be present” preserves that challenge to closure (People v Bass, 259 AD2d 419, 420).

Under New York law, when a defendant is arrested in a typical buy-and-bust operation, two questions arise regarding closure: are the factual showings of potential harm to active undercover officers sufficient; and, if so, did the court, ordering closure, consider possible alternatives that were less restrictive than closure during the officers’ testimony (cf., People v Ayala, supra, at 494 [partial closure valid])? The compelling interest of the State in protecting the identities, and safety, of undercover officers is beyond dispute, as is the general validity of that interest in this case, where partial closure, at the least, would have been supported by the record. However, neither the court nor the prosecution even addressed the challenge presented by defendant that total closure, by excluding defendant’s girlfriend and uncle, was overbroad. The court has to ensure that closure was no broader than was necessary to protect an officer’s safety and must make adequate findings to support the closure (People v Nieves, 90 NY2d 426). That obligation may require inquiry by the court itself, and will require an articulation of the court’s reasoning in support of the extent of the closure order (People v Tolentino, 90 NY2d 867, 869 [girlfriend wrongfully excluded; total closure summarily ordered]). Those findings were not made here. The absence of those findings, which is not cured in this case by any hearing evidence demonstrating that these individuals posed a risk, requires a reversal.

The prosecution’s reliance on a general record to justify complete closure logically does not apply when defendant does specify individuals, especially family members, to whom closure should not apply. The People must specifically demonstrate that, by excluding family, the closure order is not broader than necessary. The officer’s mere discomfort at testifying in front of family is insufficient (People v Green, supra). Moreover, when the exclusion applies to an identified family member, the trial court’s reasons must be “demonstrated and documented” in the record (People v Kin Kan, 78 NY2d 54, 57; People v Nieves, supra, at 430) by specific findings adequate to permit appellate review of the order (cf., People v Ayala, supra, at 501; see, People v Lincoln, 250 AD2d 409).

When no showing is made that the identified family member poses a threat to an officer’s safety or to future undercover operations (People v Bass, supra [common-law wife; no threat shown]; People v Manning, 258 AD2d 279 [People conceded error in their failure to affirmatively show danger posed by defendant’s aunts]; People v Murray, 268 AD2d 349 [no substantial probability that presence of defendant’s wife, not shown to be involved with drug trafficking and not even living in the county, threatened officer; exclusion error]), closure affecting that family member is error. The Court of Appeals has held that it was error for a trial court to exclude family members from the courtroom when an undercover officer “expressed no trepidation about testifying before defendant’s wife and children. Indeed, the officer never even mentioned defendant’s family” (People v Nieves, supra, at 430). As we have stated elsewhere, “[a]bsent an expression of particularized fear * * * closure of the courtroom to defendant’s immediate family” during the officer’s testimony is unwarranted (People v Rivera, 220 AD2d 298, 299). That was not done here.

The People construe the absence of evidence by the defense regarding these individuals to constitute counsel’s abandonment of his request for, at the most, only partial closure. Realistically, the dissent’s conclusions also hinge on abandonment, especially insofar as no showing was made that these individuals posed any threats to the officers. However, the basis of defendant’s opposition to the prosecutor’s closure motion was that these individuals in particular should attend the entire trial — that was the very reason why the Hinton hearing was conducted. As we have recently stated, “[w]here the trial court is aware that the defendant’s relatives have been attending the proceeding or that the defendant would like certain family members present, exclusion of those individuals is permitted only when necessary to protect the interest advanced by the People in support of closure” (People v Bass, supra, at 420; accord, People v Nieves, supra, at 430; compare, People v Martinez, 82 NY2d 436, 444 [defendant made no mention of particular family or friends he wanted to remain; no obligation on court to elicit request]; compare, People v Smith, 266 AD2d 62 [no request for specific family members, and no indication that any had even been present during trial]). Both conditions are present here. As such, I do not see how an abandonment can be construed from the fact that counsel did not elicit testimony regarding the officers’ specific fear arising from the specified individuals, especially when, immediately after the hearing, counsel maintained his objection that closure was overbroad.

The procedural issue follows from this. Defendant did not bear the burden to prove that the officers’ fear was baseless, as to the specified individuals or as to the public at large. The burden remained with the prosecution, as the proponent of closure, to justify abrogation of the defendant’s Sixth Amendment right to a public trial (People v Tolentino, supra). Hence, defense counsel’s omission of cross-examination, especially in view of counsel’s continuing objection that the closure order was overbroad, did not relieve the People of their burden to affirmatively prove that the specified individuals posed a threat to the officers.

Therefore, I conclude that the disposition is constrained by Court of Appeals authority requiring reversal.

Accordingly, the judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered February 19, 1998, 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 concurrent terms of 6 to 12 years and 1 year, respectively, should be reversed, oh the law, and the matter remanded for a new trial.