People v. Jones

OPINION OF THE COURT

“Buy-and-bust” cases often involve the testimony of an undercover officer. When the People can establish an overrid

Based on the allegations of undercover officer number 1625, defendant Michael Jones and codefendant Derrick Hudson were arrested on June 1, 1996, and charged with sale and possession of crack-cocaine in Brooklyn. At trial, the People moved to close the courtroom during the undercover’s testimony. The court conducted a hearing pursuant to People v Hinton ( 31 NY2d 71 , cert denied 410 US 911 ) to determine the propriety of closure. The undercover testified that she had worked as an undercover officer for “[a] little less than three years,” had made “[a]bout 250” drug purchases during that period, and had testified nine times at trial. At various times during those three years, she had worked as an undercover officer in Brooklyn. Approximately one month before defendant’s trial, however, she had been transferred to Manhattan, and was working undercover for the “North Manhattan Initiative” at the time of the trial. The undercover stated that although she no longer worked in Brooklyn the possibility remained that she would at some point return there to operate as an undercover. She indicated that in her ongoing cases before the Brooklyn Grand Jury, she took precautions — such as not mingling with the general public, dressing in civilian garb, not traveling in a police vehicle and using a separate entrance to enter the courtroom — to protect her undercover status. The undercover also testified that she had about 10 “lost subjects” in Brooklyn who had not yet been arrested and that she had received threats in the past.

Following the Hinton hearing, the prosecution argued that it was not asking for the courtroom to be sealed. However, because a “probability” existed that the undercover officer would be sent back to Brooklyn and because codefendant Derrick Hudson was at large and subject to a bench warrant, the

The court determined that the closure request was premised on an overriding interest because the codefendant was still at large and had been bench warranted. The court concluded, however, that because the undercover would not be returning to the Brooklyn area, complete closure of the courtroom during her testimony was not warranted. The court decided to post a court officer outside the courtroom door during the undercover’s testimony and to allow admission of attorneys and all family members of defendant. The court officer was asked to interview all other people seeking entry to the courtroom and instructed to ask attendees their identity and their interest in coming to court. The court further stated that, if necessary, it would recess proceedings to determine whether an individual should be admitted.

After the undercover testified, the prosecutor noted on the record, without objection from defense counsel, that only three individuals were present in the courtroom during the course of the undercover’s testimony — an attorney from defense counsel’s office, another prosecutor from the District Attorney’s office, and a member of defendant’s family. The prosecution also noted that the court officer stationed outside the courtroom had reported that “at no time did anyone else seek to enter the courtroom and everyone who sought entrance was permitted in.” Defendant was convicted of criminal sale of a controlled substance in the third degree.

The Appellate Division rejected defendant’s contention that the posting of a court officer outside the courtroom to screen potential spectators abridged his Sixth Amendment right to a public trial ( 266 AD2d 476 ). We now affirm.

Although a criminal defendant has a right to a public trial (see, US Const, 6th Amend), that right is not absolute (see, People v Ramos, 90 NY2d 490 , 497, supra). Trial courts have the discretion to exclude the public, although they must exercise that discretion “ ‘sparingly * * * and then, only when unusual circumstances necessitate it’ ” (People v Martinez, 82 NY2d 436 , 441 [quoting People v Hinton, 31 NY2d 71 , 76, supra]). “Closure remains only an exception to the mandatory

The determination whether the right to an open trial will give way to other rights or interests requires a careful balancing of those concerns (Waller v Georgia, 467 US 39 , 45, supra; see also, People v Nieves, 90 NY2d 426 , 429; People v Kin Kan, supra, 78 NY2d, at 57). To assist courts in striking this balance, the United States Supreme Court has established a four-part standard the closure order must satisfy to survive Sixth Amendment scrutiny:

“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure” (Waller, supra, 467 US, at 48 ).

The proponent of closure must first assert that a substantial probability of prejudice to a compelling interest will result from an open proceeding (Press-Enterprise Co. v Superior Ct., 478 US 1 , 14; see also, People v Ramos, supra, 90 NY2d, at 498). Thus, a nexus between the particular overriding interest asserted and open-court testimony must be established in any given case (People v Ramos, supra, 90 NY2d, at 498). A defendant’s Sixth Amendment rights “must not be lightly cast aside simply because the People claim that an undercover officer’s safety or effectiveness is at risk” and we have stressed that trial courts must “vigilantly ensure that Waller’s demanding first prong is satisfied before closing a courtroom” (id., at 506). When closure is sought for the safety of undercover law enforcement officers, we have held that “the mere possibility that this safety interest might be compromised by open-court testimony does not justify abridgement of a defendant’s constitutional right to a public trial” (id., at 498 [emphasis added]; see also, People v Martinez, supra, 82 NY2d, at 443 ).

Here, the People met their burden. The codefendant was at large and a bench warrant had been issued for his arrest. In addition, while the undercover testified that she no longer worked in Brooklyn, she still had occasion to return there to testify before the Grand Jury and there were still 10 “lost subjects” who had yet to be arrested (see, People v Diaz, 237 AD2d 457 , lv denied 90 NY2d 892 ; see also, People v Ramos, supra, 90 NY2d, at 499). The undercover also testified as to threats she had received, although none were particularly related to the instant case (see, People v Martinez, supra, 82 NY2d, at 443 ). Furthermore, the People’s application was limited in scope and was narrowly tailored to that portion of the trial that might jeopardize the undercover’s safety (People v Ramos, supra, 90 NY2d, at 504). As a final matter, we note that when the alternative to closure was sought by the prosecution, at no time did defendant argue that there was a less restrictive alternative to posting a guard outside the courtroom. Certainly, “[i]f, at that point, the defendant had alternative measures in mind that he wished the court to consider, he had ‘the responsibility of showing to the court’s satisfaction that [they] would eliminate the dangers shown’ ” (id., at 505 [citation omitted]). Thus, all four Waller prongs have been satisfied and the restriction on the public’s access to the courtroom in this case did not constitute a violation of defendant’s right to a public trial.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.