The People, Respondent,v.Andrew Moss, Appellant.BriefN.Y.March 18, 2013 To be argued by CHRISTOPHER P. MARINELLI (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANDREW MOSS, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov PATRICK J. HYNES CHRISTOPHER P. MARINELLI ASSISTANT DISTRICT ATTORNEYS Of Counsel JULY 26, 2012 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 STATEMENT OF THE CASE .......................................................................................... 2 THE HINTON HEARING ................................................................................................ 7 POINT THE TRIAL COURT'S CLOSURE OF THE COURTROOM TO THE GENERAL PUBLIC DURING THE TESTIMONY OF UNDERCOVER DETECTIVES WAS ENTIRELY PROPER .......................................... 14 CONCLUSION ................................................................................................................... 46 -ii- TABLE OF AUTHORITIES FEDERAL CASES Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) ...................................................... 16, 24, 45 Bowden v. Keane, 237 F.3d 125 (2d Cir. 2001) .................................................... 37, 40, 42 Carson v. Fischer, 421 F.3d 83 (2d Cir. 2005) ....................................15, 24, 37, 39-40, 43 Downs v. Lape, 657 F.3d 97 (2d Cir. 2011), cert. denied, 132 S.Ct. 2439 (2012) ............................................................................... 36 Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ............................................................. 38 Globe Newspaper Co. v. Super. Ct. for Norfolk County, 457 U.S. 596 (1982) ........... 38 In re Oliver, 333 U.S. 257 (1948).................................................................................. 14, 41 Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996) ................................................... 15-16, 39 Presley v. Georgia, 130 S.Ct. 721 (2010) ........................................................... 6, 35-38, 44 Press-Enterprise Co v. Super. Ct. of Cal., 478 U.S. 1 (1986) .......................................... 38 Press-Enterprise Co v. Super. Ct. of Cal., 464 U.S. 1 (1984) .......................................... 38 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ....................................... 38 United States v. Gupta, 650 F.3d 863 (2d Cir. 2011) ................................................. 15, 41 Waller v. Georgia, 467 U.S. 39 (1984) ......................................................................... passim STATE CASES People v. Alvarez, 51 A.D.3d 167 (1st Dept. 2008) ......................................................... 13 People v. Creech, 60 N.Y.2d 895 (1983) ........................................................................... 35 People v. Goode, 87 N.Y.2d 1045 (1996) ......................................................................... 34 People v. Goris, 305 A.D.2d 178 (1st Dept. 2003) .......................................................... 13 People v. Gutierez, 86 N.Y.2d 817 (1995) ........................................................................ 42 -iii- People v. Hinton, 31 N.Y.2d 71 (1972) ..................................................... 3, 5, 7, 22-23, 33 People v. Jones, 47 N.Y.2d 409 (1979) ......................................................................... 14-16 People v. Jones, 96 N.Y.2d 213 (2001) ......................................... 17, 20, 24, 28, 30, 42, 44 People v. Joseph, 59 N.Y.2d 496 (1983) ............................................................................ 15 People v. Kelly, 16 N.Y.3d 803 (2011) .............................................................................. 35 People v. Kin Kan, 78 N.Y.2d 54 (1991) ......................................................... 15-16, 41-42 People v. Liner, 9 N.Y.3d 856 (2007) ................................................................................ 35 People v. Luperon, 85 N.Y.2d 71 (1995) ........................................................................... 34 People v. Manning, 78 AD3d 585 (1st Dept. 2010) ........................................................... 6 People v. Martin, 16 N.Y.3d 607 (2011) ................................................................ 35-36, 44 People v. Martinez, 82 N.Y.2d 436 (1993) ........................ 15, 17, 24-25, 28-30, 39, 42-43 People v. Mickens, 82 A.D.3d 430 (1st Dept.), lv. denied 17 N.Y.3d 798, cert. denied 132 S.Ct. 527 (2011) ................................................................................... 6 People v. Moss, 89 A.D.3d 600 (1st Dept. 2011) ...................................................... 5-6, 33 People v. Nazario, 4 N.Y.3d 70 (2005) .............................................................................. 45 People v. Patterson, 39 N.Y.2d 288 (1976), aff'd, 432 U.S. 197 (1977) ......................... 37 People v. Ramos, 90 N.Y.2d 490 (1997), cert denied sub nom. Ayala v. New York, 522 U.S. 1002 (1997) ...................... passim People v. Smocum, 99 N.Y.2d 418 (2003) ........................................................................ 35 People v. Stanard, 42 N.Y.2d 74 (1977) ............................................................................ 21 People v. Waver, 3 N.Y.3d 748 (2004) .............................................................................. 21 -iv- FEDERAL STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS U.S. Const., amend. I ........................................................................................................... 38 U.S. Const., amend. XIV ..................................................................................................... 14 U.S. Const., amend. VI ...................................................................................... 14, 35-36, 38 STATE STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS Civil Rights Law § 12 ........................................................................................................... 14 CPL 450.20 ............................................................................................................................ 22 CPL 470.05(2) ....................................................................................................................... 33 Judiciary Law § 4 ................................................................................................................... 14 Penal Law § 220.39(1) ............................................................................................................ 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANDREW MOSS, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Carmen Beauchamp Ciparick, defendant Andrew Moss appeals from a November 22, 2011, order of the Appellate Division, First Department. By that order, a unanimous panel of the Appellate Division affirmed a January 26, 2009, judgment of the Supreme Court, New York County, convicting defendant, after a jury trial, of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a determinate prison term of ten years to be followed by three years of post-release supervision. Defendant is currently incarcerated pursuant to the judgment. -2- STATEMENT OF THE CASE As adduced at trial, on July 21, 2007, Undercover Detectives ("UC") 2454 and 5986, Detective Morgan Jones, and other officers were conducting buy-and-bust operations in northern Manhattan. At about 7:30 p.m., UC 2454 approached Keith Elam in the vicinity of West 136th Street and Amsterdam Avenue and asked Elam for crack cocaine. Elam led UC 2454 to the corner of West 135th Street and Broadway, where defendant sat with Eric Smith. When Elam requested ten bags of crack cocaine, defendant told Smith to give him crack and then called over R.M. to complete the order. Defendant handed the narcotics to Elam, who gave them to UC 2454. UC 2454 handed defendant $100 in prerecorded buy money and a business card that represented UC 2454 as a disc jockey. Meanwhile, UC 5986 had been following UC 2454 from his initial encounter with Elam. During UC 2454's interaction with defendant, UC 5986 radioed descriptions of defendant, Smith, R.M., and Elam to Detective Jones and the field team. After the sale, UC 2454 and Elam walked to West 136th Street and Amsterdam Avenue. There, UC 2454 made an excuse to go inside a "bodega," where he radioed the field team that he had made a "positive buy," provided descriptions of defendant, Smith, and R.M., and advised the field team to "freeze" everyone on the southwest corner of West 135th Street and Broadway. After apprehending Elam on West 136th Street, the field team proceeded to West 135th Street and Broadway, while UC 2454 and UC 5986 returned to their car. -3- At around 8:05 p.m., the field team stopped about five persons, including defendant, Smith, and R.M., in front of 602 West 135th Street. UC 2454 and UC 5986 drove to West 135th Street, where UC 2454 identified defendant, Smith, and R.M. as the men who sold him drugs. Detective Jones searched defendant and recovered from him $80 in prerecorded buy money. Jones further recovered $20 in prerecorded buy money from Smith and a business card from R.M. By New York County Indictment Number 3660/07, filed on August 10, 2007, a grand jury charged defendant, Smith, and R.M. with one count of third-degree sale of a controlled substance. Prior to trial, defendant and Smith moved to suppress the prerecorded buy money recovered from them and UC 2454's confirmatory identifications as the fruits of an unlawful arrest without probable cause. On March 6, 2008, the Honorable Daniel Conviser conducted a Mapp/Gethers hearing at which Detective Jones was the sole witness. Following the hearing, Justice Conviser found that Detective Jones had had probable cause to arrest defendant and Smith and denied their suppression motions. On May 12, 2008, defendant and Smith appeared before the Honorable Daniel FitzGerald for trial. That day and the next, Justice FitzGerald conducted a hearing pursuant to People v. Hinton, 31 N.Y.2d 71 (1972), to determine whether security measures were justified, and if so to what extent, during the trial testimony of UC 2454 and UC 5986. At the conclusion of the hearing, Justice FitzGerald held that the courtroom would be closed to the general public during the detectives' testimony and -4- that the detectives would be permitted to testify using pseudonyms. The only person either defendant or Smith asked to have present at trial was defendant's mother. The court ruled that defendant's mother would be permitted to be present during the detectives' testimony, said that any other family members who did not live in the immediate area of the sale would be admitted, and stated that the court would consider on a case-by-case basis admitting family members who did live in the area of the sale. The court declined to adopt a suggestion by defendant that a court officer be stationed at the door to screen visitors to the courtroom during the detectives' testimony. On May 13th, jury selection commenced in the joint trial of defendant and Smith. At trial, UC 2454 and UC 5986 testified about the drug sale and identified defendant and Smith as two of the dealers who had sold crack to UC 2454. Detective Jones testified about defendant's arrest, Detective Alfred Hernandez testified about the operation of drug-selling teams, and Police Criminalist Colin Upton testified that he had verified that the substance UC 2454 purchased from defendant contained cocaine. Codefendant Smith also testified and admitted to selling crack to UC 2454. However, according to Smith, defendant came along a few minutes after the sale. Smith claimed that, as a sign of friendship, he had handed defendant five $20 bills. -5- On May 22nd, the jury convicted defendant and Smith as charged and, on January 26, 2009, the court sentenced defendant as noted above.1 Defendant appealed to the Appellate Division, arguing in pertinent part that, at the "Hinton" hearing, the People failed to make the showing necessary to justify the closure of the courtroom during the testimony of UC 2454. Defendant did not challenge the sufficiency of the showing with respect to UC 5986. Defendant further argued that the trial court had failed to consider alternatives to closing the courtroom. On November 22, 2011, a unanimous panel of the Appellate Division affirmed defendant's conviction. People v. Moss, 89 A.D.3d 600 (1st Dept. 2011). The court held that the evidence at the Hinton hearing "established an overriding interest that warranted closure of the courtroom" during UC 2454's testimony. Id., citing Waller v. Georgia, 467 U.S. 39 (1984), and People v. Ramos, 90 N.Y.2d 490 (1997), cert denied sub nom. Ayala v. New York, 522 U.S. 1002 (1997). The court noted that UC 2454 had "testified that he continued to work in, among other places, the area of the sale, that he had pending cases connected with that area, that he had been threatened while 1 That same day, Justice FitzGerald sentenced Smith to a prison term of five years. On October 25, 2007, R.M. had pled guilty to attempted third-degree drug sale and, on November 29, 2007, the court had adjudicated him a youthful offender and sentenced him to five years' probation. Prior to indictment, Elam had pled guilty to seventh-degree drug possession and the court sentenced him to a 60-day jail term. According to the records of the District Attorney's Office, Smith and R.M. have filed Notices of Appeal to the Appellate Division, but neither has perfected an appeal. -6- working in the area, and that he took precautions when entering the courthouse to protect his identity." People v. Moss, 89 A.D.3d at 600. The Appellate Division further held that, "[i]nstead of ordering a complete closure" of the courtroom, the trial court "permitted defendant's family to attend" and, "[i]n addition, it considered but rejected an alternative to closure proposed by defendant." Thus, the Appellate Division concluded that the trial court had satisfied the requirement of Waller v. Georgia, 467 U.S. at 39, that the court "consider[ ] alternatives to full closure." People v. Moss, 89 A.D.3d at 600-01, citing Presley v. Georgia, 130 S.Ct. 721, 724 (2010); People v. Mickens, 82 A.D.3d 430 (1st Dept.), lv. denied 17 N.Y.3d 798, cert. denied 132 S.Ct. 527 (2011); People v. Manning, 78 AD3d 585, 586 (1st Dept. 2010); lv. denied 16 N.Y.3d 861 (2011). Defendant now submits to this Court that the People failed to establish an overriding interest sufficient to justify closure of the courtroom during UC 2454's testimony and that the hearing court failed to consider alternatives to closure. -7- THE HINTON HEARING On May 12, 2008, the parties appeared before the Honorable Daniel FitzGerald for trial. At the outset, the court had the attorneys step up to an off-the- record sidebar conference about the "Hinton [h]earing" regarding the trial testimony of UC 2454 and UC 5986 (A12-13).2 Subsequently, after briefly addressing other issues (A13-14), the court stated that defendant's attorney had informed the court that defendant's mother, who lived in the Bronx, "may" want to attend trial. Defendant personally confirmed that this was so (A14-16). Defendant's attorney stated that defendant's mother was "very interested in the case" and had come to "almost every" court date, although counsel had advised her not to attend that day or until after jury selection (A16). Conversely, codefendant Smith personally confirmed that he had no family who would be attending trial (A15). The court stated that it was "fine" if defendant's mother attended the trial, and asked the defense attorneys to "[d]ouble check" if any additional family members wished to attend and "[c]lear [it] with me first if there's going to be officers here" (A16). Each of the detectives then testified separately. First, UC 5986 testified that he was a two-year veteran of undercover work, who was assigned to the Manhattan North Narcotics command, which covered Manhattan north of 59th Street (UC 5986: A18-19, 35-36; see UC 2454: A52). In particular, UC 5986 was assigned to a 2 Parenthetical citations preceded by "A" are to defendant's appendix. -8- "module" that focused on the 30th Precinct, which included West 135th Street and Broadway (UC 5986: A36-37; see UC 2454: A66-67). UC 5986 participated in undercover operations a "few" times a week and had participated in approximately 200 drug buys in his career (UC 5986: A18, 34-35). Approximately 150 of those purchases had been made in the Manhattan North command, although UC 5986 had also worked in Staten Island and could be assigned anywhere in the city (UC 5986: A35-36). Prior to July 21, 2007, UC 5986 had made about 20 to 30 purchases in the vicinity of West 135th Street and Broadway. Subsequently, UC 5986 had made 15 to 20 additional purchases there (UC 5986: A19). UC 5986 had made purchases in the area as recently as one week prior to trial (UC 5986: A19-20). At the time of trial, UC 5986 had five to ten cases from the vicinity of West 135th Street and Broadway pending in Manhattan courthouses (UC 5986: A19-20, 30-31). UC 5986 had five to ten lost subjects or defendants on bail from those cases (UC 5986: A23-24, 32). On about five occasions, suspects had patted down UC 5986 for weapons (UC 5986: A22-23). Suspects had verbally threatened to harm UC 5986 if he were revealed to be a police officer. For instance, once in the vicinity of 148th Street, a suspect had threatened to "jack . . . up" UC 5986 if he were revealed to be a police officer (UC 5986: A23, 37). On two occasions, UC 5986 had been recognized as an undercover officer in the vicinity of 148th Street and 155th Street (UC 5986: A36). On one occasion, a person from whom UC 5986 had previously purchased drugs recognized -9- UC 5986, made a telephone call to the suspect from whom UC 5986 was then attempting to buy drugs, and interrupted the purchase (UC 5986: A24-25). In light of the threats made by suspects, UC 5986 feared for his life and believed that, if his identity as an undercover officer became public, it would jeopardize the safety of himself, his fellow officers, and his family (UC 5986: A21-23, 29-30). To maintain his anonymity, UC 5986 always entered the courthouse through a side entrance and, prior to his hearing testimony, he had remained in a "secluded area" of the courthouse (UC 5986: A24). In the past, UC 5986 had encountered suspects in or around the courthouse (UC 5986: A24). UC 5986 had a driver's license and bills in his name and believed that, with the detective's name, a suspect could find personal contact information (UC 5986: A25-26). The following day, May 13, 2008, UC 2454 testified. UC 2454 was a 16-year veteran of undercover work, who was also assigned to the Manhattan North Narcotics command (UC 5986: A52-53, 71). In his career, UC 2454 had participated in more than 1,000 narcotics buys, including 500 to 600 street-level purchases (UC 5986: A52-53, 71). UC 2454 was assigned to the "module" that focused on the 33rd Precinct, which was immediately adjacent to the 30th Precinct and covered West 155th to West 180th Streets (UC 2454: A66-67). Typically, UC 2454 participated in undercover operations about three times a week (UC 5986: A19; UC 2454: A53). At the time of trial, UC 2454 had been on "temporary" assignment to a long- term federal investigation in south Brooklyn for about two months (UC 2454: A52, -10- 67-68). Nonetheless, he continued to work two days a week in the Manhattan North command and anticipated returning full-time by January 2009 (UC 2454: A53-55, 68- 69, 74-75). Although his "main precinct" was the 33rd, on any given day, UC 2454 could be assigned anywhere in the Manhattan North command, including to the 30th Precinct (UC 2454: A65-69, 74-75). In the year prior to defendant's arrest on July 21, 2007, UC 2454 had worked with the 30 module about five or six times (UC 2454: A66-67). During those assignments, UC 2454 had made about 20 narcotics purchases in the vicinity of West 135th Street and Broadway (UC 2454: A55-56). Between July 21, 2007, and trial, UC 2454 had made more than 30 or 40 additional buys in the area (UC 2454: A55-56). UC 2454 had made purchases in the area as recently as March 2008, at which time he concluded working on an investigation "in the perimeter" of the area around West 135th Street and Broadway (UC 2454: A56-57). Some of the buys UC 2454 had made in the vicinity of West 135th Street and Broadway had led to arrests. At the time of the hearing, UC 2454 had about ten cases from buys in the area that were pending in Manhattan courthouses (UC 2454: A55- 56). UC 2454 also had "lost subject[s]" in cases from along Broadway between West 130th and West 178th Streets. In particular, he had lost subjects in four or five cases from West 144th Street and had two defendants out on bail in cases from that area (UC 2454: A62-63). -11- In the past, suspects had threatened UC 2454 with guns, knives, and scissors, including a suspect who pressed a gun to UC 2454's head (UC 2454: A59-60). These suspects had told UC 2454 that they "would not hesitate" to use those weapons if he were revealed to be a police officer (UC 2454: A54). In fact, during his very first drug buy, a suspect had threatened to kill UC 2454 if he was a police officer (UC 2454: A61). In 2006, a drug dealer had put out a "contract" to kill UC 2454, who took to carrying a radio at all times and having his home "circl[ed]" regularly by patrol cars (UC 2454: A59-60). In 2005, in Coney Island, Brooklyn, a suspect had threatened UC 2454 by using a pair of scissors to simulate a gun (UC 2454: A59-60). On another occasion, a suspect who weighed "200 solid" pounds had begun questioning UC 2454 after a drug sale (UC 2454: A60). About 50 times, suspects had patted down UC 2454 to see if he was carrying gun or wearing a bulletproof vest or recording device (UC 2454: A60-61). On two or three occasions, UC 2454 had been threatened while working in the vicinity of West 135th Street and Broadway, although these threats were "nothing major, where guns have been pulled or knives have been displayed" (UC 2454: A62, 73). In the past, during the course of a buy-and-bust operation, suspects had recognized UC 2454, requiring him to give a "distress" signal to be "[ex]tract[ed]" by his field team (UC 2454: A64). In light of the threats made by suspects, UC 2454 feared for his life and believed that, if his identity as an undercover officer became public, it would -12- jeopardize the safety of himself, his fellow officers, and his family (UC 2454: A57-58, 61, 73). In order to maintain his anonymity, UC 2454 never used the main entrance to the courthouse. Coming to court for defendant's trial, UC 2454 had parked his car in a "safe area," entered the District Attorney's offices through a side entrance, and then entered the courthouse through side entrance normally reserved for judges (UC 2454: A63). In the past, UC 2454 had encountered suspects in or around the courthouse (UC 2454: A63, 69-70). UC 2454 had a driver's license and bills in his name and believed that, with his name, a suspect could find personal contact information (UC 2454: A64-65). While UC 2454 occasionally shopped with his family in the area of West 135th Street and Broadway, he dressed differently than when he was on duty so as not to be recognized. UC 2454 would wear hats to cover his braided hair and large sunglasses that covered most of his face (UC 2454: A71-77). After observing "changes" in the vicinity of West 135th Street and Broadway, UC 2454 had ceased patronizing an accountant who lived "not even around the corner" from where UC 2454 bought drugs from defendant (UC 2454: A72). At the conclusion of the hearing, the court held that both detectives would be permitted to testify using pseudonyms and that the general public would be excluded from the courtroom during the detectives' testimony. Prior to the hearing, defendant's attorney had taken the position that it would be prejudicial to allow the detectives to testify using their shield numbers (A78-79). However, when the court -13- asked if, in light of the testimony, counsel thought it was a "good idea" to have the detectives testify under their real names, counsel replied, "Being intellectually honest, no, but . . ." (A80). The court stated that it believed that it would be more "efficien[t]" to have the officers testify by their shield numbers. But, in deference to defendant's concern that that would imply a threat arising from the case, the court directed the People to have the detectives invent pseudonyms, but "nothing to[o] dramatic" or "out of Hollywood" (A79, 88-90). Citing People v. Alvarez, 51 A.D.3d 167 (1st Dept. 2008) and People v. Goris, 305 A.D.2d 178 (1st Dept. 2003), the court stated that "enough has been shown" to demonstrate that admitting the general public to the courtroom during the testimony of the UC 2454 and UC 5986 would "jeopardize" the "safety" and effectiveness of the detectives. Thus, the court would exclude the general public from the courtroom during the testimony of the detectives (A78, 87-88). However, the court noted that it had to "focus" when it came to the question of family's attendance at trial. Generally, the court stated that "family should be here," provided that they did not live in the area of the sale. More particularly, the court stated that, if defendant's mother lived in the Bronx, she would be allowed to be present during the detectives' testimony. However, if additional family members who lived in the "precise area" of the sale wished to be present during the detectives' testimony, the court would "face those decisions when they arise" (A78, 88). -14- POINT THE TRIAL COURT'S CLOSURE OF THE COURTROOM TO THE GENERAL PUBLIC DURING THE TESTIMONY OF UNDERCOVER DETECTIVES WAS ENTIRELY PROPER (Answering Defendant's Brief). Prior to trial, defendant admitted that, due to security concerns, it would not be a "good idea" for UC 2454 or UC 5986 to testify under his real name. On appeal, defendant does not dispute that the People established an overriding interest in closing the courtroom during the testimony of UC 5986. However, defendant claims that Justice FitzGerald's closure order violated defendant's right to a public trial under federal and state law, contending that the People failed to make a sufficient showing to justify the closure of the courtroom during the testimony of UC 2454 and that the court did not consider any reasonable alternatives to closure (Defendant's Brief ["DB"]: 14). But, defendant has not preserved his claim that the trial court failed to consider alternatives to closure, and all of defendant's arguments are meritless. A. A criminal defendant enjoys constitutional and statutory rights to a public trial. U.S. Const., amend. VI; Civil Rights Law § 12; Judiciary Law § 4. New York's open trial rights are guaranteed by statute, and the federal constitution's sixth amendment guarantee of a public trial is applicable to the states by virtue of the due process clause of the fourteenth amendment. In re Oliver, 333 U.S. 257, 266-73 (1948); People v. Jones, 47 N.Y.2d 409, 411, n. 1 (1979). The "core values" that the sixth amendment -15- seeks to protect are to: "1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury." United States v. Gupta, 650 F.3d 863, 867 (2d Cir. 2011), quoting Peterson v. Williams, 85 F.3d 39, 41- 43 (2d Cir. 1996) (citing Waller v. Georgia, 467 U.S. at 46-47); see People v. Joseph, 59 N.Y.2d 496, 499 (1983); People v. Jones, 47 N.Y.2d at 415-16. However, while the right to a public trial is "fundamental," it is "neither absolute nor inflexible." People v. Martinez, 82 N.Y.2d 436, 441 (1993); see United States v. Gupta, 650 F.3d at 866-72 (stating the "presumption" of a public trial is "not absolute" and, subsequently, discussing the Second Circuit's "triviality exception" for violations of the right). Accordingly, trial courts "unquestionably have discretionary authority to exclude the public." People v. Martinez, 82 N.Y.2d at 441; see Carson v. Fischer, 421 F.3d 83, 91 (2d Cir. 2005) (on habeas review, agreeing with a state court determination that the trial court's limited closure of the courtroom during an informant's testimony was a "provident exercise of discretion") (internal quotation omitted). A court's exercise of that discretion comports with constitutional guarantees when: 1) the party seeking closure "advance[s] an overriding interest that is likely to be prejudiced"; 2) the closure is no broader than necessary; 3) the court considers "reasonable alternatives to closing the proceeding"; and 4) the court makes "findings adequate to support the closure." Waller v. Georgia, 467 U.S. at 45; see People v. Kin -16- Kan, 78 N.Y.2d 54, 58-59 (1991) (adopting the Waller analysis). Administering these standards requires a "delicate balancing" of competing interests. People v. Kin Kan, 78 N.Y.2d at 58. In this case, defendant contends that the People failed to demonstrate an overriding interest in closing the courtroom during the testimony of UC 2454 and that Justice FitzGerald failed to consider any alternatives to closing the courtroom during the testimony of the undercover detectives. Those arguments are addressed in turn. B. It is well settled that protecting the safety and effectiveness of police officers constitutes an overriding interest that can warrant the closure of a courtroom. See People v. Ramos, 90 N.Y.2d at 498; People v. Jones, 47 N.Y.2d at 414; see also Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997); Peterson v. Williams, 85 F.3d at 39. However, a simple claim that the officer's safety is at risk is not enough to justify closure. Rather, there must be a specific link between the officer's concerns and open-court testimony in the particular case. People v. Ramos, 90 N.Y.2d at 497-98. Among the factors this Court has considered in determining whether such a threat exists are: whether the undercover officer has other cases in the courthouse; whether there are suspects in the officer's cases who remain at large; whether the officer continues to engage in undercover work in the vicinity of the charged crime; whether, in the past, the officer has encountered suspects in the courthouse; whether the officer has encountered former suspects during the course of his undercover work; -17- and whether the officer takes other precautions to protect his identity. See, e.g., People v. Jones, 96 N.Y.2d 213, 215 (2001); People v. Ramos, 90 N.Y.2d at 498; People v. Martinez, 82 N.Y.2d at 443. Here, UC 2454's hearing testimony clearly established an overriding interest. To begin, UC 2454's testimony made clear that he worked with some regularity in the vicinity of West 135th Street and Broadway. In the year prior to defendant's arrest on July 21, 2007, UC 2454 had made about 20 drug buys in the vicinity of West 135th Street and Broadway (A55-56). Moreover, in the ten months between the sale and trial, UC 2454 had made more than 30 to 40 additional buys in the area (A55-56). As a consequence, UC 2454 had pending in the courthouse about ten cases from the area of West 135th Street and Broadway (A56). He also had "lost subjects" and had defendants on bail from cases just a few blocks north on West 144th Street (A62-63). Significantly, in the past, UC 2454 had encountered suspects in the courthouse and had also encountered former suspects during undercover operations (A63-64, 69-70). To be sure, UC 2454 was regularly assigned to a module focusing on the 33rd Precinct and, at the time of trial, was on assignment to a long-term federal investigation in Brooklyn (A52, 66-68). However, UC 2454 continued to work two days a week in Manhattan (A53-55, 68-69, 74-75). Accordingly, UC 2454 surely risked exposure to both past subjects and potential future targets should he testify in an open Manhattan courtroom. On this score, it is worth noting that, in responding to defendant's arguments below, Justice FitzGerald stated that he had a "large work -18- load," but no longer maintained a set "calendar" day. As a consequence, the court had "a lot" of defendants and parole violators, who were "frequently narcotic[s] defendants," who could return to the courtroom at any time (A81). Moreover, the threat to UC 2454 was increased in defendant's case. UC 2454's "main precinct" ran along Broadway between West 155th and West 180th Streets and was immediately adjacent to the 30th Precinct, where the instant sale took place (A66). Furthermore, as Justice FitzGerald took care to ascertain, as a member of the Manhattan North command, on any given day, UC 2454 could be assigned anywhere within the command, including to the 30th Precinct (A65-69, 74-75). Indeed, as just discussed, it is clear that UC 2454 worked in the area with some frequency. Thus, given the particular interest defendant's case might generate for the area's residents – and drug peddlers – UC 2454's risk of exposure was heightened. Notably, UC 2454, a 16-year veteran of undercover work, was more active in the specific area of West 135th Street and Broadway, where the sale in this case occurred, than UC 5986, a two-year veteran of undercover work, even though the junior officer was regularly assigned to the 30th Precinct (UC 5986: A18; UC 2454: A52). For instance, as previously noted, UC 2454 had made about 20 drug buys in the area of West 135th Street and Broadway in just the year prior to defendant's arrest – about the same number of buys as UC 5986 had made in the area during his whole career up to the time of defendant's arrest (UC 5986: A19; UC 2454: A55-56). Even more strikingly, in the ten months between defendant's arrest and trial, UC 2454 had -19- made more than 30 to 40 additional buys – at least twice as many buys as UC 5986 had made in the same time period (UC 5986: A19; UC 2454: A55-56). Relatedly, the approximately ten cases from the area of West 135th Street and Broadway that UC 2454 had pending in the courthouse at the time of trial was as many or more than UC 5986 (UC 5986: A19-24; UC 2454: A55-56). Moreover, the testimony of both detectives made clear that, in addition to their continued effectiveness as undercover officers, their physical safety was at risk if their trial testimony exposed them as police officers. In the course of their duties, suspects had threatened to kill or to injure each detective if he were revealed to be a police officer (UC 5986: A21-23, 36-37; UC 2454: A54, 58-61, 73). Although neither officer had been threatened by defendant or his codefendants, UC 2454 had been threatened while working in the vicinity of West 135th Street, making clear that drug dealers in that neighborhood were no less dangerous than anywhere else (UC 2454: A73). Accordingly, each detective took steps to protect his identity. For instance, both officers entered the courthouse through side entrances, UC 2454 parked his car in a "safe area" and used a side entrance to the District Attorney's offices as well, and UC 5986 remained "secluded" prior to his testimony (UC 5986: A24; UC 2454: A63). Based on that evidence, Justice FitzGerald correctly concluded that there was an overriding interest justifying closure of the courtroom to the general public during the testimony of each officer to insure his physical safety and continued effectiveness (A77-78, 87-88). That determination was entirely consistent with the relevant -20- precedent of this Court. For instance, in People v. Jones, 96 N.Y.2d at 215, the Court found that the People had established an overriding interest justifying a partial closure of a Brooklyn courtroom during the testimony of an undercover officer. This was so even though, a month before trial, the undercover officer had transferred from Brooklyn to the "North Manhattan Initiative." And, the undercover officer could testify only to the "possibility" of someday being assigned to Brooklyn again. Id. at 215. Nonetheless, the Court found closure justified based on the fact that the officer had ongoing cases before Brooklyn grand juries, that she had about 10 "lost subjects" in Brooklyn cases, that she had "received threats in the past," and that she took security precautions when coming to court, such as "not mingling with the general public" and entering the courthouse through a side entrance. Id. at 215. Similarly, in People v. Ayala, 90 N.Y.2d at 496, the Court found courtroom closure justified where an undercover officer testified that he was "currently active" in a three-precinct area that included the site of the defendant's arrest. The officer further testified that he had been threatened in front of the courthouse by a defendant in an unrelated case, although he had not been threatened with respect to the defendant's case. Id. at 496. Here, UC 2454's regular assignment to a precinct immediately adjacent to the one in which the sale took place, his periodic assignment to that precinct, his pending cases from the area of West 135th Street and Broadway, and his hearing testimony about the particular dangers he had faced as a undercover -21- officer fully supported closing the courtroom to the general public for UC 2454's trial testimony.3 Despite the thoughtful conduct of the hearing court, defendant now insists that Justice FitzGerald erred in finding that the People had established an overriding interest in protecting the safety and effectiveness of UC 2454 that justified closing the courtroom to the general public during that detective's testimony (A78, 87-88). But, defendant's arguments have little basis in either the facts of this case or the actual precedent of the United States Supreme Court and this Court. Defendant begins and ends his brief blustering that, in New York, "the lower courts are not giving full effect" to the relevant precedent of the Supreme Court or this Court, that courtroom closures for undercover testimony are "now-routine," and that "the time is ripe for this Court to make clear that the right to a public trial is guaranteed" and "paying lip service to that right will not suffice" (DB: 1, 4-5, 28). Defendant's call to arms is, of course, totally irrelevant. The record in this case unequivocally shows that Justice FitzGerald conducted a thorough inquiry at the 3 Defendant does not dispute that it was appropriate to allow the detectives to testify under pseudonyms, nor could defendant reasonably do so. To justify shielding a witness's identity at trial, the People must first "come forward with some showing of why the witness should be excused" from providing identifying information, such as a danger that the information could be used to "harass, annoy, humiliate or endanger the witness." People v. Stanard, 42 N.Y.2d 74, 84 (1977). The burden then shifts to the defendant to demonstrate that the witness's name is material to the issue of the defendant's guilt. Id. Even if the defendant can make such a showing, the trial court is entrusted with the discretion to balance properly the competing interests. Id. at 84-85; see also People v. Waver, 3 N.Y.3d 748 (2004). -22- Hinton hearing, engaged in an extensive colloquy with the parties about the necessary security precautions, and then closed the courtroom to the general public only for the testimony of the undercover detectives, while making allowances for defendants' family members to attend. Accordingly, defendant's case provides no opportunity to forward his professed concerns with the general state of the law, and he is certainly not entitled to a new trial simply in order to send a message to the lower courts.4 Next, defendant states that this Court has held that a "showing" of an overriding interest "may be made when, at a Hinton hearing, an undercover officer testifies that he or she is active in 'the specific area' of a charged offense or plans to 4 Defendant submits that "[f]or all practical purposes," closure of the courtroom during the testimony of undercover police officers is "exclusively a New York phenomenon" and that his research indicates that 98% of all courtroom closure cases involving an undercover police officer occurred in New York (DB: 1, fn 1). But, that argument is beside his ostensible point that the lower courts of this state are not following this Court's precedent. As discussed in text, this Court and the federal Court of Appeals for the Second Circuit have repeatedly held that protecting the safety and effectiveness of undercover police officers is an overriding interest that can justify the closure of a courtroom. Defendant does not dispute that principle. Nor does he cavil with this Court's precedent delineating the showing necessary to justify such a closure. Thus, simply pointing out that, as a matter of practice, courtrooms might be closed for undercover testimony more frequently in New York than in other jurisdictions does not demonstrate any impropriety. Likewise, reciting the number of appellate cases raising the issue of courtroom closure does nothing to establish that New York's lower courts have not followed the relevant precedent. For instance, the number of cases gives absolutely no indication of the percentage of narcotics cases in which closure is requested, of the frequency with which such requests are denied – an order that is not appealable by the People, see CPL 450.20 – or of how often closure is limited in a fashion satisfactory to defendants. Finally, even if courtroom closure has not proved as "rare" as the Court once anticipated, see People v. Ramos, 90 N.Y.2d at 496, defendant is simply wrong to assume that is a sign that the lower courts are failing to follow the relevant precedent. Rather, it may indicate no more than that the circumstances recognized as legitimately justifying closure are not as "unusual" as initially believed. See People v. Hinton, 31 N.Y.2d at 75-76. -23- work there in the near future." Defendant complains that "New York's lower courts have read this doctrine so broadly, however, that what qualifies as 'the specific area' often appears to include much – if not all – of Manhattan" (DB: 15). More particularly, he insists that the Appellate Division's ruling here would allow for closure based on testimony that an undercover officer planned to "work virtually anywhere in half of the entire borough of Manhattan" (DB: 22-23), or perhaps merely in an area "at least one to two miles from the actual location of the charged offense" (DB: 18; see 2-3). As noted, this Court has certainly cited an undercover officer's anticipated return to undercover work in the area of a sale as a factor in establishing an overriding interest in closing a courtroom during his or her testimony. See, e.g., People v. Ramos, 90 N.Y.2d at 494. But, as defendant's careful wording suggests, and entirely contrary to his implications, the Court has never held that factor – or any other particular consideration – to be indispensable to the finding of a legitimate threat to a police officer's safety and effectiveness. In fact, despite defendant's quotation of the phrase "the specific area" (DB: 15), it does not appear that this Court has ever even used the phrase in describing the showing that the People must make at a Hinton hearing. Rather, no doubt recognizing the fact-intensive nature of the inquiry, the Court has never required the precise formula defendant offers. Indeed, this Court has observed that "[p]olice officers cannot be expected always to have advance notice of the precise street corner to which they will be -24- assigned." People v. Ayala, 90 N.Y.2d at 500. And, in Ayala, testimony including that the officer continued to work in a three-precinct area encompassing the sale site established a "sufficient link . . . between testifying openly in defendant's case and being recognized by residents of those neighborhoods in which the officer worked undercover." Id. at 500. In fact, as discussed, in People v. Jones, 96 N.Y.2d at 215, even though the undercover officer had been transferred to a different borough, the Court found courtroom closure justified based on the officer's pending cases and past threats that she had received. See generally Carson v. Fischer, 421 F.3d at 83, 86, 89- 90 (closure of the courtroom to the general public during the testimony of a confidential informant was consistent with Waller although the informant no longer lived in the area of the sale); Okonkwo v. Lacy, 131 F.3d 62, 65 (2d Cir. 1997) (closure justified based on testimony that an undercover officer was a member of the "Manhattan South Tactical Narcotics" team and that he intended to conduct a "maintenance" visit to the area of a sale). Given all this, it is just misleading when defendant notes that, in People v. Pearson, 82 N.Y.2d at 436, the undercover detective for whose testimony the courtroom was closed was returning to work in the area of the sale the same day as the hearing (DB: 17), as if that were the only basis upon which a courtroom might ever be closed under this Court's precedent. In fact, even in Pearson, the Court considered other factors, including that the sale site – the Port Authority bus terminal – was "readily accessible" from the Manhattan courthouse by subway and that the -25- undercover officer testified that she feared for her safety and entered courthouses through back entrances. Id. at 440. Of course, the same was true here, where West 135th Street and Broadway was likewise "readily accessible" from the courthouse and UC 2454 also testified to fearing for his safety and to taking security precautions when coming to court. Next, defendant's assumption that open-court testimony in this case could pose no threat to UC 2454 as long as he returned to a precinct one to two miles from the sale site (DB: 18, 22-23) is divorced from both the record and reality. Preliminarily, there was no evidence introduced at the hearing that the 33rd Precinct was as much as two miles from the sale site, and defendant's effort to add such a "fact" to the record only underscores that the existing record is against him. In any event, open testimony in a Manhattan courtroom plainly ran the risk of exposing UC 2454 to drug defendants from his "main precinct," even if he was testifying about a drug buy made elsewhere. Furthermore, that risk was heightened here, where UC 2454 was assigned to the precinct immediately adjacent to the one in which the sale took place. The significance of an undercover officer's return to work in the area of a sale is that members of the community – and, presumably, other drug dealers active in the area – are more likely to attend trial. Accordingly, their presence would result in a greater risk of exposure of an officer in future undercover operations in that neighborhood. See People v. Ayala, 90 N.Y.2d at 500. That same reasoning applies with only -26- marginally less force to an officer stationed near the sale site. Defendant's assumption that drug dealers confine themselves neatly within police precincts might be dismissed as advocate's hyperbole, if it did not reveal a studied indifference to the safety of undercover police officers. In fact, it is naive to think that a drug dealer who might have associated with defendant near West 135th Street and been interested in attending his trial would be unlikely to traffic drugs north of West 155th Street. However, contrary to defendant's implications, whether that threat is enough to justify a courtroom closure is not a question this Court need answer in this case. Over and over again, defendant recites that UC 2454 characterized himself as a "visitor" to the 30th Precinct, that his "main precinct" was the 33rd, that he was working on a "long federal" investigation, and that he agreed with defense counsel that his work in the area had been "fairly limited" (DB: 2-3, 8-9, 17). But, nowhere does defendant squarely address the more particular evidence that established that UC 2454 nonetheless worked with some frequency in the vicinity of West 135th Street and Broadway. For instance, as noted, UC 2454 testified that, as a member of the Manhattan North command, he could be assigned anywhere within the command, including the 30th Precinct, on any given day. Defendant's only apparent acknowledgment of this testimony is to assert, in essence, that UC 2454 testified that he "could not predict his schedule going forward" (DB: 3, 5, 8-9, 18). Even more telling is defendant's refusal to acknowledge anywhere in his brief the testimony illustrating how frequently UC 2454 had, in fact, been assigned to the -27- area in which the sale in this case occurred. As noted, in the ten months between defendant's arrest and trial, UC 2454 had made more than 30 to 40 buys in the vicinity of West 135th Street and Broadway – about twice as many purchases as UC 5986, who was regularly assigned to the 30th Precinct. Relatedly and revealingly, defendant makes no effort to explain the distinction he draws between UC 2454 and UC 5986, for whom defendant does not dispute the People established an overriding interest in closing the courtroom. Of course, the most salient distinction between the officers is that UC 5986 was regularly assigned to the 30th Precinct and had made drug buys in the vicinity of West 135th Street and Broadway as recently as one week prior to trial, while UC 2454 had not made a buy in the area in more than one month (UC 5986: A19-20; UC 2454: A56-57). Nonetheless, as just explained, the hearing proof showed UC 2454 to have been the more active officer in the area between defendant's arrest and his trial. When defendant finally turns to the facts of his case, his arguments are no more compelling. For instance, as discussed, UC 2454 testified to having been threatened numerous times in the course of his undercover work, including two or three times in the vicinity of West 135th Street and Broadway (A59-60, 62, 73). But, defendant insists that those threats were irrelevant, because the ones made near West 135th Street and Broadway were "in the past" and "nothing major" (DB: 1-2, 9-10, 19). Relatedly, defendant stresses that UC 2454 had not been threatened by defendant, codefendant Smith, or otherwise in relation to defendant's case (DB: 10, -28- 19). However, these arguments misapprehend the relevant law and the import of UC 2454's testimony. This Court has held that a physical threat to an undercover officer from open- court testimony cannot be established based solely on the "officer's own assertion that he feared for his safety." People v. Martinez, 82 N.Y.2d at 443. However, evidence that an undercover officer has been threatened in the past can serve to substantiate his concern for his physical safety. Moreover, it is clear that a threat to an undercover officer's safety does not have to emanate from the particular case in which he is testifying, since the "likelihood of encountering other investigative targets" can be, and generally is, the overarching concern that justifies closure of a courtroom. See People v. Ramos, 90 N.Y.2d at 498-99. Thus, far from requiring that a threat be tied to a specific case or the precise block on which the crime took place, this Court has repeatedly found courtroom closure justified in the absence of a case-related threat or threats in the area of the crime. See People v. Jones, 96 N.Y.2d at 215 (undercover officer testified that "she had received threats in the past"); People v. Ramos, 90 N.Y.2d at 495 ("While making undercover buys in the past, [UC 27296] further testified, he had been recognized and his safety compromised. No one connected with the defendant or any pending cases, however, had threatened him"; UC 569 "specifically testified that he had been threatened at gunpoint when a former subject discovered that he was a police officer"); People v. Ayala, 90 N.Y.2d at 496 ("Although [the undercover officer] had -29- previously been threatened in front of the courthouse by a defendant in an unrelated case, he had not received any threats from anyone connected to this case"). Here, UC 2454 was able to offer particularly detailed testimony about the perils of undercover work, including that one suspect pressed a gun to his head and that another took out a "contract" on UC 2454's life. Against this background, it is understandable that UC 2454 considered the verbal threats he had received in the vicinity of West 135th Street and Broadway "nothing major, where guns have been pulled or knives have been displayed" (A73). Nonetheless, those threats illustrated that the drug trade on West 135th Street was no less dangerous than elsewhere. Notably, what defendant does not explicitly countenance, he implicitly acknowledges when he does not protest the sufficiency of the showing with respect to UC 5986. Like UC 2454, UC 5986 had not been threatened by anyone connected to defendant's case (A23, 30). In a similar vein, UC 2454 and UC 5986 both testified that they took security precautions when coming to court. According to defendant, this factor is insignificant, at least with respect to UC 2454. Quoting People v. Martinez, 82 N.Y.2d at 443, defendant correctly observes that "this Court has held that courtroom closure is not justified if based solely on 'the officer's own assertion that he feared for his safety[.]'" According to defendant, this means that UC 2454's testimony about the safety precautions he took was "insufficient to warrant courtroom closure" (DB: 20- 21). But, defendant simply misses – or, perhaps, just ignores – the Court's point. -30- In Martinez, the prosecutor asked an undercover officer just four questions in an effort to establish a basis for courtroom closure. And, the entirety of the officer's testimony about the risk to his physical safety consisted of the prosecutor asking, "Do you fear for your safety if the courtroom is not closed in this case?" and the officer replying, "Yes." 82 N.Y.2d at 436. That is the type of conclusory assertion that this Court found wanting. In contrast, as noted, UC 2454 offered extensive testimony about why he feared for his safety and the fact that he took safety precautions served to corroborate that the risk was genuine. Accordingly, not surprisingly, and directly contrary to defendant's intimation, this Court has recognized that an undercover officer's use of security precautions substantiates assertions of danger. See People v. Jones, 96 N.Y.2d at 215; People v. Ramos, 90 N.Y.2d at 495; People v. Pearson, 82 N.Y.2d at 440. Next, defendant notes that UC 2454 testified that he sometimes shopped in the vicinity of West 135th Street and Broadway. According to defendant, this "hardly qualifies as the sort of future work that could have justified closing the courtroom" and shows that UC 2454 "did not fear being recognized as a result of his prior undercover work" (DB: 3, 18-19). First, at the hearing, neither the People nor Justice FitzGerald ever suggested that UC 2454's shopping habits were a basis for closing the courtroom. Beyond that, defendant's claim that those habits illustrate that UC 2454 faced no danger is unpersuasive. -31- To begin, as the People pointed out below, UC 2454 testified that he altered his appearance when he went to the neighborhood for "personal[ ]" reasons so as to avoid being recognized (A71-77, 86-87). UC 2454 also testified that he stopped using an accountant who worked very close to West 135th and Broadway and to whom UC 2454 presumably would have to divulge his true name and identity (A72). Furthermore, as Justice FitzGerald wryly noted in response to arguments by the defense attorneys below, "Have either of you considered the possibility that junkies are allowed to shop in the area that they live?" (A84-85). That is, unless done in uniform, shopping in the area in which UC 2454 posed as a drug buyer did not risk exposing him as an undercover detective. In sharp contrast, testimony in open court about his undercover work threatened to expose the officer's true identity and impair his safety and effectiveness in any future undercover operations. Lastly in this regard, defendant insists that the People argued to the hearing court that the fact that UC 2454 was assigned to Manhattan alone was sufficient to close the courtroom. According to defendant, the prosecutor did so by arguing, "It's my position that, you know the test has been met and that he does work in Manhattan North . . . I mean it is Manhattan, your Honor. People go there. It's not like this is a remote. It's the middle of Manhattan, so it makes sense that someone would go there" (DB: 11, 22-23, fn. 9, citing A86-87). Defendant simply misrepresents the People's argument below, eliding over more than half a page of that argument. -32- In fact, after noting that UC 2454 "does work in Manhattan North," the People continued: that his assignment in Brooklyn was "temporary"; that he did not work on that assignment full-time; that he "gets randomly assigned to various module teams in the [Manhattan North] command"; that he had worked with the "30 team" before; and that he had worked in the area of the sale since defendant's arrest (A86). Turning to the fact that UC 2454 testified that he went to the area of the sale for "personal[ ]" reasons, the People noted that UC 2454 still took steps to disguise his appearance (A86-87). The People continued that, as Justice FitzGerald had noted, the fact that UC 2454 might be seen in the vicinity of West 135th Street in the company of "civilians" did not "necessarily mean anything." It was in this context that the People submitted that "[i]t's the middle of Manhattan, so it makes sense that someone would go there" (A86-87). In other words, the People were simply pointing out that UC 2454's visits to the area in his off-hours would not be unusual or out-of-character for a drug buyer and, thus, did not threaten to expose him as an undercover operative. All told, the record plainly made out an overriding interest in closing the courtroom during UC 2454's testimony to protect his physical safety and continued effectiveness as an undercover police officer. C. Next, as noted, the Appellate Division found that Justice FitzGerald had "considered but rejected an alternative to closure proposed by defendant" and satisfied the Waller requirement that the judge "consider[ ] alternatives to full closure" -33- of the courtroom. People v. Moss, 89 A.D.3d at 600-01 (internal quotation and citations omitted). This would seem to be a factual determination beyond the scope of this Court's review. CPL 470.05(2); 470.35. Accordingly, defendant is left to insist that "the record is completely bereft of evidence that the trial court considered any alternative to closing the courtroom" (DB: 24-25). In fact, the record exposes defendant's claim as unpreserved and meritless. At the conclusion of the Hinton testimony, defendant's attorney argued that he saw a "problem" in that UC 2454 had testified that he worked "primarily in the 33rd" Precinct. Counsel also asked rhetorically "how many people come . . . and watch these trials," and pointed out that no one had attended the hearing (A80). It was at this point that the court explained that, in fact, it had "a lot" of narcotics defendants who could return to the courtroom at any time (A81). Defendant then argued that "there's precautions that can be taken. A court officer can be stationed at the door. They can permit and allow family members to come in" (A81). Counsel continued that, "[i]f there's anyone else who wants to come in who doesn't have a case who wants to observe," the court officer could "see who's coming in, what business they have here. It will be a limit[ed] closure to let [defendant's] family come in. If there's anyone suspicious of a dubious background who wants to come in, that could be taken up" with the court "at an appropriate time" (A81-82). -34- Counsel then immediately offered additional argument concerning the detectives' use of pseudonyms (A82-83). After that, the court asked if counsel for codefendant Smith had "[a]nything further [he] wish[ed] to add," heard defendants' arguments concerning the significance of the UC 2454's shopping in the area of the sale, and entertained the People's response to all of the defense arguments (A83-87). Ultimately, as noted, the court ruled that the courtroom would be closed to the general public during the testimony of UC 2454 and UC 5986. The court also ruled that defendant's mother would be allowed to attend the detectives' testimony, stated that other "family should be here" provided that they did not live in the area of the sale, and further held that, if additional family members who lived in the "precise area" of the sale wished to be present during the detectives' testimony, the court would "face those decisions when they arise" (A87-88). This record provides no basis for relief. To begin, defendant's claim that the trial court failed to consider any alternatives to closing the courtroom is unpreserved. It is axiomatic that, to preserve a question of law for appellate review, a defendant must "specifically" bring the issue to the trial court's attention so as to provide that court with an "'opportunity to remedy the problem and thereby avert reversible error." People v. Goode, 87 N.Y.2d 1045, 1047 (1996), quoting People v. Luperon, 85 N.Y.2d 71, 78 (1995). At trial, defendant argued that a sufficient showing had not been made to close the courtroom to the general public during the testimony of UC 2454 and that the court should station a court officer at the door to admit family -35- members and determine the purpose of anyone else who attempted to enter. Notably, the court adopted defendant's suggestion to the extent of admitting family who did not live in the area of the sale. Contrary to defendant's contention on appeal (DB: 7), the fact that he suggested the additional step of having a court officer screen non-family visitors to the courtroom is a far cry from arguing that the trial court had completely abdicated its obligation to consider any alternative to closing the courtroom. Thus, defendant's current claim is unpreserved. See generally People v. Smocum, 99 N.Y.2d 418, 423 (2003) ("it is for courts to discharge their responsibilities under the law and for counsel to voice objection when they do not"); People v. Creech, 60 N.Y.2d 895 (1983) (claim that trial court erred by failing to give statutorily-mandated presumption-of-innocence charge had to be preserved by specific objection). Defendant offers vaguely that his claim is preserved "by United States Supreme Court and New York State Court of Appeals precedent" (DB: 6). However, defendant merely cites to passages in Presley v. Georgia, 130 S.Ct. at 724, and People v. Martin, 16 N.Y.3d 607, 612 (2011), which state that a trial court must sua sponte consider alternatives to closure regardless of whether a defendant suggests any alternatives. That does nothing to relieve a defendant of his burden to make a timely objection if he believes that the court has shirked its obligation. Significantly, this Court has applied New York's preservation rules to sixth amendment claims. See generally People v. Kelly, 16 N.Y.3d 803, 804 (2011); People -36- v. Liner, 9 N.Y.3d 856, 856-57 (2007). And, the Supreme Court has recognized that state procedural rules may be properly applied to the public trial provisions of the amendment. See Waller v. Georgia, 467 U.S. at 42, n. 2 (stating that, on remand, the state courts should consider whether a codefendant who had joined the prosecution in seeking closure of the courtroom was "procedurally barred from seeking relief as a matter of state law"). In fact, more recently and more specifically, the federal Court of Appeals for the Second Circuit rejected a habeas petitioner's argument that New York's "contemporaneous objection rule cannot be used to bar review of his Sixth Amendment claim because the trial court was independently required to justify and consider alternatives to courtroom closure[.]" Downs v. Lape, 657 F.3d 97, 108 (2d Cir. 2011), cert. denied, 132 S.Ct. 2439 (2012). The Second Circuit concluded that, "[w]hatever tension exists between a court's independent duty to justify courtroom closure and the contemporaneous objection rule, Presley and its predecessors do not resolve it in [the petitioner's] favor." Id. Lastly with respect to preservation, in Martin, this Court did not hold that, independent from an unjustified closure of a courtroom, the failure to consider alternatives to closure was a mode-of-proceedings error that did not require preservation. See People v. Martin, 16 N.Y.3d at 611-12 (holding that no overriding interest had been established by the trial court's concerns that there was not enough space in the courtroom to accommodate both the defendant's father and the venire and that the defendant's father might influence the venire). This Court recognizes -37- exceptions to the preservation requirement for issues so fundamental that they go to the integrity of the judicial process itself. See generally People v. Patterson, 39 N.Y.2d 288, 295-97 (1976), aff'd, 432 U.S. 197 (1977). Plainly, it flouts that very purpose, and only promotes gamesmanship, to suggest that a defendant can decline to draw the trial court's attention to an easily correctable error such as the one alleged here, only to turn around and attack the court on appeal. In any event, defendant's claim is meritless. As noted, "before excluding the public," a trial court must "consider whether something short of complete closure" will suffice to protect the overriding interest identified. People v. Ramos, 90 N.Y.2d at 502-03; see Presley v. Georgia, 130 S. Ct. at 724. Whether a restriction of the public trial right is "narrow or broad depends on several factors, including its duration, whether the public can learn what transpired while the trial was closed (e.g. through transcripts), whether the evidence was essential, and whether selected members of the public were barred from the courtroom, or whether all spectators were excluded." Carson v. Fischer, 421 F.3d 83, 89-90 (2d Cir. 2005), citing Bowden v. Keane, 237 F.3d 125, 129-30 (2d Cir. 2001). Notably, the consideration of "alternative" procedures begs the question of to what, exactly, the procedures must represent an alternative. But, both the Supreme Court and this Court have made clear that a trial court's obligation is to consider alternatives to complete closure of an entire proceeding to the entire public. In Waller, a judge closed the courtroom entirely during a seven-day suppression hearing, -38- of which only about two and one-half hours was taken up playing wiretap recordings that the State had contended threatened the privacy of unindicted persons. 467 U.S. at 42-43. The Supreme Court found that the hearing court had improperly failed to "consider alternatives to immediate closure of the entire hearing[.]" Id. at 48 (emphasis added); see Press-Enterprise Co v. Super. Ct. of Cal., 478 U.S. 1, 13-15 (1986); Gannett Co. v. DePasquale, 443 U.S. 368, 393 (1979).5 And, in Ramos, this Court stated that the principles set forth in Waller "require trial courts, before excluding the public, to consider whether something short of complete closure would protect the 'overriding interest' at stake." 90 N.Y.2d at 502-03 (emphasis added). Steps such as closing the courtroom for only a portion of a proceeding or allowing the presence of a defendant's family members represent alternatives to complete closure of a proceeding. See Waller v. Georgia, 467 U.S. at 48-49 5 Press-Enterprise Co. and Gannett address the public's first amendment right to access criminal trials. While it is an "open question" whether the first and sixth amendment rights are precisely "coextensive" in scope, Presley v. Georgia, 130 S.Ct. at 724, it is settled that the analysis for evaluating a courtroom closure is the same under both. Waller v. Georgia, 467 U.S. at 47 ("under the Sixth Amendment any closure . . . must meet the tests set out in" Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501 [1984] and other first amendment cases); see generally Globe Newspaper Co. v. Super. Ct. for Norfolk County, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The first amendment precedent only underscores that trial courts must "consider whether alternatives short of complete closure would have protected the interests" advanced by the proponent of closure. Press-Enterprise Co v. Super. Ct. of Cal., 478 U.S. at 4-5, 14 (emphasis added) (criticizing the California Supreme Court's failure to consider that question and finding that it had been improper to close a 41-day preliminary hearing to the press and seal the transcript). . -39- (suggesting as alternatives to complete closure "directing the government to provide more detail about its need for closure, in camera if necessary, and closing only those parts of the hearing that jeopardized the interests advanced"). Moreover, where a trial court's obligation is to consider alternatives to complete closure of a courtroom, it can hardly be expected to "explicitly" consider every possible alternative. See People v. Ramos, 90 N.Y.2d at 504; see generally Carson v. Fischer, 421 F.3d at 90. Here, Justice FitzGerald narrowly tailored his closure order and not only considered but employed alternatives to complete closure of the trial. First, the court closed the courtroom only during the testimony of the undercover detectives. Thus, completely open to the public were: the pretrial suppression hearing at which the arresting officer Detective Morgan Jones testified; jury selection; opening statements; the trial testimony of Jones, Detective Alfred Hernandez, Police Criminalist Colin Upton, and codefendant Eric Smith; summations; and sentencing. See People v. Ramos, 90 N.Y.2d at 496-97 (finding it appropriate in two separate trials to limit access to the courtrooms during the testimony of undercover officers and noting that the courtrooms had been open for the testimony of other witnesses); People v. Pearson, 82 N.Y.2d at 441 (same); cf. Peterson v. Williams, 85 F.3d at 43. Moreover, the testimony of the undercover detectives was not completely shielded from public scrutiny. First, the court did not seal the transcript of the detectives' testimony. See People v. Ramos, 90 N.Y.2d at 496, 501-02 (noting that the transcript of closed-courtroom testimony had not been sealed; contrasting pertinent -40- Supreme Court precedent in which the minutes were sealed); see also Carson v. Fischer, 421 F.3d at 89-90, 92; Bowden v. Keane, 237 F.3d at 129-30. Moreover, defendant's mother was present for the testimony of both UC 2454 and UC 5986. And, although there was no one else that defendant and codefendant Smith wished to have attend trial, the court stated that any family members who did not live in the vicinity of West 135th Street and Broadway would also be welcome to attend all of the proceedings and that, if defendants had relatives who lived in the area of the sale and wished to attend, the court would consider admitting them (A12-16, 87-88). Accordingly, it is abundantly clear that Justice FitzGerald not only considered alternatives to closing the courtroom completely, he implemented several, including defendant's suggestion that family be admitted. Defendant's claim that Justice FitzGerald failed entirely to consider alternatives to closure is therefore unavailing. To begin, defendant simply reframes the issue as whether the court considered alternatives to closing portions of the trial to the "general public" (DB: 24-25). Defendant decrees that "a courtroom open to certain family members of the accused but closed to the general public is a closed courtroom" (DB: 27). Defendant also insists that the presence of a defendant's family at trial bears only on the "second Waller prong" concerning whether the closure was narrowly tailored (DB: 25-26). Defendant then somehow reaches the conclusion that, to hold otherwise, "[r]educ[es]" the right to a public trial to the right to have family attend and "effectively strip[s] defendants without family members" of their right to a -41- public trial (DB: 27). But, defendant's arguments are divorced from the relevant precedent. First, as discussed, it is clear that a trial court's mandate is to consider alternatives to complete closure of a courtroom during an entire proceeding. See Waller v. Georgia, 467 U.S. at 42-43; People v. Ramos, 90 N.Y.2d at 502-03. Next, a defendant's family is plainly part of the "public" that typically must be allowed to attend trial, and a defendant's entitlement to have his family in attendance is squarely rooted in the right to an open trial. See In re Oliver, 333 U.S. at 266-73; People v. Kin Kan, 78 N.Y.2d at 56. The fact that the People must make a particularized showing to exclude family members, see People v. Kin Kan, 78 N.Y.2d at 58-59, in no way "reduces" the right to public trial. Moreover, contrary to defendant's implication, the presence of a defendant's family may be particularly well-suited to guaranteeing the benefits the public trial right is designed to protect – such as ensuring a fair trial and appropriate conduct by the court and prosecutor, and discouraging perjury, see United States v. Gupta, 650 F.3d at 867 – since family would presumably be more invested than the general public in policing these matters in a particular defendant's case. Furthermore, defendant's suggestion that each "prong" of Waller represents a discrete category and that each fact in a given case must weigh exclusively as to one category or another is utterly inconsistent with the way the Supreme Court and this Court have guarded the right to a public trial. See Waller v. Georgia, 467 U.S. at 48- -42- 49 (citing as "alternative" to complete closure of a hearing to have required a more particularized showing by the State and to have closed only part of the hearing and continuing that the resulting "closure was far more extensive than necessary"); People v. Jones, 96 N.Y.2d at 218-20 (finding it unnecessary to classify a screening procedure as either an alternative to closure or as a partial closure because the interest in an open trial is implicated in either circumstance and noting that the "breadth of the closure" will always be "measured against the risk of prejudice" to the overriding interest); see also Bowden v. Keane, 237 F.3d at 130 ("there will not always be a meaningful analytic distinction between the first and second prongs of the Waller test"). In particular, while at times, this Court has discussed the admission of family members as a question of whether a closure order was narrowly tailored, see, e.g., People v. Gutierez, 86 N.Y.2d 817, 818 (1995); People v. Kin Kan, 78 N.Y.2d at 59, at other times it has discussed their admission as an alternative to a complete closure of the courtroom. See, e.g., People v. Ramos, 90 N.Y.2d at 504; People v. Pearson, 82 N.Y.2d at 444. Here, the trial court's admission of defendant's mother during the testimony of the undercover detectives unquestionably represented an alternative to the complete closure of the courtroom during trial. And, the court's implementation of that procedure defeats defendant's claim that the court gave no consideration at all to alternatives to complete courtroom closure. Finally, defendant complains that Justice FitzGerald "registered no reaction" to his suggestion that the court station a court officer at the door to screen visitors (DB: -43- 24-25). Defendant's claim is unavailing for several reasons. Foremost, defendant's argument is factually suspect. Defendant actually suggested that the court officer could both admit family members and screen any other prospective visitors to the courtroom (A81-82). And, Justice FitzGerald adopted defendant's suggestion to the extent of allowing the blanket admission of family members who did not live in the vicinity of West 135th Street and Broadway. Thus, the only reasonable conclusion is that the court considered, but rejected, the additional step defendant suggested. See Carson v. Fischer, 421 F.3d at 90 (although the trial court's response to the defendant's two suggested alternatives to courtroom closure explicitly referenced only one of the alternatives, in context, the court was understood to have considered and rejected both). Moreover, even if the record did not plainly establish that the court considered defendant's suggestion, it would still support an inference that the court considered those and other alternatives. This Court has held that, "where the factual record permits closure and the closure is not facially overbroad," it is implicit that the trial court "considered excluding the public during [a] discrete part of the trial to be the least restrictive alternative" available. People v. Ramos, 90 N.Y.2d at 504-05, citing People v. Pearson, 82 N.Y.2d at 444 (noting that a trial court that issued a narrow closure order during an undercover officer's testimony did not commit reversible error in failing to explore "explicitly" other alternatives). Thus, the fact that Justice FitzGerald made findings of an overriding interest and ordered a limited closure of -44- the courtroom during the testimony of the detectives raises an inference – which defendant has done nothing to rebut – that the judge considered reasonable alternatives to closure.6 Certainly, the court's rejection of defendant's suggestion that a court officer be posted at the courtroom door does nothing to undermine the inference that the court considered reasonable alternatives to closure, for that suggestion was patently unreasonable. Indeed, just moments before, the court had set forth all the reasons that rendered that alternative impractical. As Justice FitzGerald explained, since he no longer had a "calendar day," there were "a lot" of "narcotic[s] defendants" who could return to court at any time (A81). Indeed, it is significant and unsurprising that defendant has never seriously argued on appeal that stationing a court officer at the door was a "reasonable" alternative that the court should have employed. As this Court has recognized, posting an officer at the courtroom door is an alternative that is itself "potentially prejudicial" as "unduly disruptive" and, "therefore, might not be considered 'reasonable[.]'" People v. Ramos, 90 N.Y.2d at 505. 6 Presley v. Georgia, 130 S.Ct. at 721, and People v. Martin, 16 N.Y.3d at 607, are not to the contrary. In each of those cases, the courts had failed to adduce any record supporting closure before summarily ruling that a defendant's relative could not be accommodated in the courtroom during voir dire. Thus, unlike Ramos, there was no basis for an inference that the courts had duly considered alternatives to closure. Notably, recognizing that record support for closure and a court's implementation of some alternative procedures as evidence that the court has properly considered alternatives does nothing to adumbrate a defendant's rights under Waller, since a defendant can still argue that, even with the court's alternatives in place, the closure was nonetheless broader than necessary. See Waller v. Georgia, 467 U.S. at 45; People v. Jones, 96 N.Y.2d at 218-20. -45- Those difficulties are only underscored here. Defendant suggested that a court officer could bring to the court's attention, "at an appropriate time," anyone "suspicious of dubious background who wants to come in," while admitting "family members" and, presumably, anyone the court officer did not deem "suspicious" (A81- 82). This was clearly impractical. After all, the presence of a court officer at the door would not have the talismanic effect of forcing drug dealers to divulge truthfully their background and the nature of their "business" with the court (A81). And, it would be at UC 2454's peril to accept at face value the representation of any potential visitor to court or to delegate to a court officer the determination of a visitor's credibility. Realistically, the court would need to screen every potential visitor. And, the People could fairly ask to investigate those of "dubious" background (A82). Plainly, such steps would represent an unreasonable drain on resources, particularly in a case where the court has "a lot" of drug defendants returning to the courtroom. Accordingly, it is unsurprising that courts have been skeptical of such steps. See Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir. 1997) ("we do not believe that the Supreme Court wanted trial judges selecting the alternative of limited closure" – i.e., closure just during the testimony of undercover officers – "to consider further alternatives that themselves pose substantial risks to a fair trial for the defendant"); cf. People v. Nazario, 4 N.Y.3d 70, 74 (2005) (noting that a trial court need not accept at face value a defendant's representations that he enjoys a special relationship with a person the defendant wishes to attend trial in exception to a general closure order). -46- And, Justice FitzGerald's rejection of such a measure as unreasonable was well within his discretion. * * * In sum, the trial court judiciously exercised its discretion in limiting the general public's access to the courtroom during the testimony of UC 2454. CONCLUSION The order of the Appellate Division, First Department, should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov BY: CHRISTOPHER P. MARINELLI Assistant District Attorney Of Counsel PATRICK J. HYNES CHRISTOPHER P. MARINELLI Assistant District Attorneys Of Counsel July 26, 2012