Opinion
2011-08-18
The PEOPLE of the State of New York, Respondent,v.Antoine GRAY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), and Chadbourne & Parke LLP, New York (Marcelo Blackburn of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 16, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 7 1/2 years, unanimously reversed, on the law, and the matter remanded for a new trial.
The court deprived defendant of his right to a public trial when it ordered the courtroom closed to the public, including defendant's family and girlfriend, during the testimony of an undercover officer. As the Supreme Court held in Presley v. Georgia, 558 U.S. –––, ––––, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 [2010] and the New York Court of Appeals reiterated in People v. Martin, 16 N.Y.3d 607, 612, 925 N.Y.S.2d 400, 949 N.E.2d 491 [2011], the trial courts are required to consider alternatives to closure even when they are not offered by the parties. Here, the court summarily rejected, without comment, defendant's request to allow the presence of interested family members, including his *637 girlfriend, and the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings ( see Presley, 558 U.S. at 48–49, 130 S.Ct. at 724–725; Waller v. Georgia, 467 U.S. 39, 48–49, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984] ). Accordingly, reversal is warranted ( Presley, 558 U.S. at ––––, 130 S.Ct. at 725; Martin, 16 N.Y.3d at 609, 925 N.Y.S.2d 400, 949 N.E.2d 491).
MAZZARELLI, J.P., SAXE, RENWICK, DeGRASSE, RICHTER, JJ., concur.