Summary
In Hines, the Appellate Division, Second Department reversed defendant's conviction and ordered a new trial where the trial court denied defense counsel's request that a Legal Aid attorney who had been observing the trial be allowed to remain in the courtroom during the undercover's testimony, holding that defendant's constitutional right to a public trial was violated when the trial court excluded the Legal Aid attorney. 225 A.D.2d at 706–07, 640 N.Y.S.2d 133.
Summary of this case from People v. K.U.Opinion
March 18, 1996
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
At the conclusion of a hearing pursuant to People v Hinton ( 31 N.Y.2d 71, cert denied 410 U.S. 911), the defendant objected to closure of the courtroom to the general public and also requested that a Legal Aid attorney who had been observing the trial be allowed to remain in the courtroom during the undercover officer's testimony. The Supreme Court ruled that the courtroom would be sealed to the public based on concerns over the safety of the officer and also ruled that unless the defense wished to make the Legal Aid attorney cocounsel, he would also be excluded.
On appeal, the defendant contends that he was denied his right to a public trial (see, US Const 6th Amend; Civil Rights Law § 12; Judiciary Law § 4; People v Jones, 47 N.Y.2d 409, cert denied 444 U.S. 946) because the Supreme Court closed the courtroom and excluded the Legal Aid attorney during the undercover police officer's testimony. We find that the Supreme Court properly ordered the closure of the courtroom to the public since the undercover officer testified that he continued to work undercover in the neighborhood of the defendant's arrest and had lost several suspects in that area, and further testified that his safety and the integrity of future investigations would be jeopardized if his identity was disclosed, thus establishing a sufficient link between his concern for safety and his open-court testimony (see, People v Martinez, 82 N.Y.2d 436; People v Anderson, 210 A.D.2d 417; People v Cepeda, 209 A.D.2d 631; People v Mitchell, 209 A.D.2d 444; People v Crowder, 207 A.D.2d 559; People v James, 207 A.D.2d 564). However, we agree with the defendant that his constitutional right to a public trial was violated when the Supreme Court excluded the Legal Aid attorney.
It is the party seeking closure that is burdened with "`advanc[ing] an overriding interest that is likely to be prejudiced'" (People v Martinez, supra, at 442, quoting Waller v Georgia, 467 U.S. 39, 48). The Court of Appeals has also held that once a defendant seeks the inclusion of a particular individual, the party seeking exclusion is again burdened with proving that the exclusion of that individual is necessary to protect the witness (see, People v Gutierrez, 86 N.Y.2d 817; People v Kin Kan, 78 N.Y.2d 54, 58-59; see also, People v Bess, 220 A.D.2d 603). Thus, the People were bound to prove that the Legal Aid attorney somehow jeopardized an overriding interest of the undercover police officer (see, People v Bess, supra; People v Mercer, 204 A.D.2d 741). Since the undercover officer stated that he was not bothered by the attorney remaining in the courtroom and the Supreme Court failed to make findings which supported exclusion, the defendant must be granted a new trial. Accordingly, we reverse. Bracken, J.P., Sullivan, Santucci and Krausman, JJ., concur.