The People, Respondent,v.Andrew Moss, Appellant.

Brief

N.Y.March 18, 2013

To Be Argued By: JUSTIN M. ROSS, ESQ. Time Requested: 15 MINUTES New York County Indictment Number 366012007 <1:ourt of ~ppeaIs STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANDREW MOSS, Defendan~Appellant BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. JOSEPH M. NURSEY, ESQ. Attorney for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Phone: (212) 402-4100 Fax: (212) 402-4199 PETER L. SIMMONS, ESQ. JENNIFER L. COLYER, ESQ. JUSTIN M. ROSS, ESQ. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, NY 10004 Phone: (212) 859-8000 Fax: (212) 859-4000 Date: May 14,2012 Reproduced on Recycled Paper TABLE OF CONTENTS Table of Authorities ii Introduction 1 Questions Presented 5 Statement Pursuant to Rule 500. 13(a) 6 Statement ofFacts 8 Argument................................................................................................................. 13 I. The Trial Court Erred by Closing the Courtroom to the General Public During the Trial Testimony of the Undercover Officers 13 A. The Prosecution Failed to Prove That There Was an Overriding Interest Likely to Be Prejudiced Absent Courtroom Closure During the Trial Testimony of Undercover Officer 2454 15 1. UC 2454 Did Not Testify That He Continued to Work in the Specific Area of the Charged Offense and Could Not Testify That He Would Return to Work There in the Future................................................................... 17 2. DC 2454's Testimony Regarding Pending Cases, Threats, and Precautions Taken Provided No Basis for Courtroom Closure 19 3. The Rest ofUC 2454's Testimony is Equally Insignificant.. .. 21 B. The Trial Court Failed to Consider Reasonable Alternatives to Courtroom Closure 24 Conclusion 29 - 1 - CASES TABLE OF AUTHORITIES PAGE(S) People v. Gutierez, 86 N.Y.2d 817 (1995) 26 People v. Hinton, 31 N.Y.2d 71 (1972) 16 People v. Jones, 96 N.Y.2d 213 (2001) passim People v. Kin Kan, 78 N.Y.2d 54 (1991) 13,14,26 People v. Martin, 16 N.Y.3d 607 (2011) passim People v. Martinez, 82 N.Y.2d 436 (1993) passim People v. Moss, 89 A.D.3d 600 (lst Dep't 2011) passim People v. Nazario, 4 N.Y.3d 70 (2005) 26, 27 n.12 People v. Pearson, 82 N.Y.2d 436 (1993) 17 People v. Ramos, 90 N.Y.2d 490 (1997) passim People v. Vargas, 244 A.D.2d 367 (2dDep't 1997) 21 Presley v. Georgia, 130 S. Ct. 721 (2010) passim Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501 (1984) 26, 27 - 11 - CASES PAGE(S) Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) 26 Waller v. Georgia, 467 U.S. 39 (1984) passim STATUTES N.Y. Civ. Rights Law § 12 (McKinney 2009) 4, 13 N.Y. Jud. Law § 4 (McKinney Supp. 2012) 4, 13 N.Y. Penal Law § 220.39(1) (McKinney 2008) 3 n.3 OTHER AUTHORITIES U.S. Const. Amend. VI 4, 13,26 U.S. Const. Amend. XIV 4, 13 - 111 - INTRODUCTION This Court has issued clear statements of law regarding courtroom closure in landmark cases like People v. Ramos, 90 N.Y.2d 490 (1997), and People v. Martinez, 82 N.Y.2d 436 (1993). Thus, it is with troubling regularity that despite this Court's clear and controlling direction, New York's lower courts continue to misapprehend what is required to warrant abridging a defendant's constitutional right to a public trial. Indeed, the standards articulated by this Court are read so broadly that the per se rule of closure this Court rejected is fast becoming a reality.' In Appellant Andrew Moss's case, the court conducted a pre-trial Hinton hearing to determine whether the courtroom should be closed during the trial testimony of two undercover police officers: Undercover Officer 2454 ("UC 2454") and Undercover Officer 5986 ("UC 5986"). UC 2454 testified that he had pending cases from the area in which Mr. Moss was arrested. He also testified that he had received threats in that area, which occurred "in the past" and were "nothing major." Tellingly, a Westlaw search and a LexisNexis search (without time restriction and including both state and federal cases) each turned up the same result: a mere five reported cases involving some form of courtroom closure during the testimony of an undercover officer in jurisdictions outside of New York. By contrast, that search revealed a staggering 264 reported cases involving courtroom closure during the testimony of an undercover officer in New York since June 1996 alone. That is more than 98% of such cases nationwide, a percentage that would be even higher if all New York cases of this sort were included. For all practical purposes, this is exclusively a New York phenomenon. T. 57, 65-68; A. 62, 70-73.2 Critically, however, DC 2454 did not testify that he continued to work in that area or that he had any definite sense as to when, if ever, he would work there in the future. Therefore, his testimony as to any risk associated with returning to work in the area of Mr. Moss's arrest was of no consequence. Further, the only testimony DC 2454 gave to suggest that he would return to that area for any reason implied that it would be entirely safe for him to do so: "I just happen to walk around the area because I like the area. They have a lot of clothing stores." T. 67; A. 72. That DC 2454 would voluntarily return to the specific area of the charged offense on his own time, to shop no less, demonstrates that he did not fear being recognized as a result of his prior undercover work there. Thus, his own testimony belied the notion that he was concerned for his safety; a far cry from establishing the "link ... between the officer's safety concerns and open-court testimony" that is necessary to justify courtroom closure under the precedent of this Court. Ramos, 90 N.Y.2d at 498. Yet, the Appellate Division held that "[t]he evidence at a Hinton hearing established an overriding interest that warranted closure of the courtroom." People 2 For convenience, the transcript of the Hinton hearing on May 12 and 13, 2008, will be cited as "T." and the Appellant's Appendix in this Court will be cited as "A." 2 v. Moss, 89 A.D.3d 600, 600 (1st Dep't 2011) (citations omitted);' That decision, like many others, merely parroted this Court's carefully articulated standards before undermining them by accepting the bare evidentiary showing adduced by the prosecution. Here, the Appellate Division found sufficient testimony that DC 2454 would return to work twice per week in the 33rd Precinct despite the fact that the 33rd Precinct is at least one to two miles from the location in the 30th Precinct where Mr. Moss was arrested - 135th Street and Broadway. In fact, DC 2454 was a "visitor" in the 30th Precinct when Mr. Moss was arrested, T. 60; A. 65; his "main precinct" was the 33rd Precinct, T. 61-63; A. 66-68; and, at the time of the Hinton hearing and for the foreseeable future, he was doing most ofhis work in Brooklyn as part of a "long federal case." T. 49, 62-63; A. 54, 67-68. This decision demonstrates that the Appellate Division uses a far lower bar than this Court has set when determining what the prosecution must show to establish an overriding 3 By permission of the Honorable Carmen Beauchamp Ciparick, Associate Judge of the Court ofAppeals, granted March 13, 2012, appeal is taken from an order of the Appellate Division, First Department, entered on November 22, 2011. The Appellate Division order affirmed a judgment rendered on January 26, 2009, by the Supreme Court, New York County (Fitzgerald, D., at Hinton hearing, trial, and sentencing). The Appellate Division was mistaken in stating that the trial court judgment was rendered February 9, 2009; it was rendered January 26, 2009. Timely notice of appeal was filed January 27,2009. The Appellant, Andrew Moss, was convicted by a jury of one count of criminal sale of a controlled substance in the third degree, N.Y. Penal Law § 220.39(1) (McKinney 2008), and sentenced to ten years imprisonment and three years post- release supervision. Mr. Moss is currently serving his sentence. 3 interest likely to be prejudiced absent courtroom closure. The Appellate Division also erred in concluding that the trial court considered reasonable alternatives to courtroom closure by "permitt[ing] defendant's family to attend." Moss, 89 A.D.3d at 600. Excluding certain family members of the accused from a general closure order is a limitation on the breadth of closure, not an alternative to closing the courtroom, and the record clearly demonstrates that the trial court did not consider the alternative proposed by Mr. Moss's trial counselor any alternative of its own. By holding otherwise, the Appellate Division disregarded the precedent of the United States Supreme Court and this Court alike. See Waller v. Georgia, 467 U.S. 39 (1984); Presley v. Georgia, 130 S. Ct. 721 (2010); People v. Martin, 16 N.Y.3d 607 (2011). As is set forth in greater detail below, closing the courtroom to the general public in this case violated Mr. Moss's constitutional right to a public trial. U.S. Const. amends. VI, XIV; N.Y. Civ. Rights Law § 12 (McKinney 2009); N.Y. Jud. Law § 4 (McKinney Supp. 2012). This Court should therefore reverse and remand for a new trial. 4 QUESTIONS PRESENTED 1. Whether an undercover police officer's Hinton hearing testimony revealing that he has no plans to return to work in the specific area, neighborhood, or precinct in which a charged offense occurred, but will return to work - periodically - in another precinct at least one to two miles away from the scene of the charged offense, is sufficient to warrant closing the courtroom to the general public during that officer's testimony at trial. 2. Whether, where the courtroom IS closed to the general public, allowing for the possibility that certain family members of the accused will be permitted to attend courtroom proceedings demonstrates that a court has considered "reasonable alternatives to closure" as is required under Presley v. Georgia, 130 S. Ct. 721 (2010), and People v. Martin, 16 N.Y.3d 607 (2011). 5 STATEMENT PURSUANT TO RULE 500.13(A) 1. Mr. Moss's claim that the Hinton hearing testimony given by UC 2454 was insufficient to establish an overriding interest likely to be prejudiced absent courtroom closure during UC 2454' s testimony at trial is preserved for this Court's review by the extensive argument Mr. Moss's trial counsel presented on the subject at that same hearing. T. 75-77; A. 80-82. Mr. Moss's trial counsel explicitly objected to the prospect of a courtroom closed to the general public during UC 2454' s testimony at trial, stating that "a blanket closure for this, given what this specific undercover said, would not be warranted in this case." T. 77; A. 82. 2. Mr. Moss's claim that permitting certain family members of the accused to attend courtroom proceedings does not demonstrate that a court considered "reasonable alternatives to closure" is preserved for this Court's review by United States Supreme Court and New York State Court of Appeals precedent. See Presley v. Georgia, 130 S. Ct. 721, 724 (2010) (holding "that trial courts are required to consider alternatives to closure even when they are not offered by the parties"); People v. Martin, 16 N.Y.3d 607,612 (2011) (holding that "[t]he court is required to consider alternatives even if neither party suggests any. Consequently, pursuant to Presley, the trial court's failure to consider any alternate accommodations violate[s] [a] defendant's right to an open trial, regardless of the 6 reasons for closure."). Furthermore, during the Hinton hearing, Mr. Moss's trial counsel proposed an alternative to closure for the trial court to consider - though he need not have done so under Presley and Martin. T. 76-77; A. 81-82. 7 STATEMENT OF FACTS On the evening of July 21, 2007, the NYPD conducted a buy-and-bust operation near 135th Street and Broadway in Manhattan's 30th Precinct. On May 12 and 13, 2008, prior to Mr. Moss's trial for his alleged participation in that staged drug transaction, a Hinton hearing was held to determine whether the courtroom should be closed to the public during the trial testimony of two undercover police officers: DC 2454 and DC 5986.4 During the hearing, DC 2454 testified that he was a "visitor" in the 30th Precinct on the day of the operation that resulted in Mr. Moss's arrest. T. 60; A. 65. Before that day, DC 2454's work in the area was "fairly limited." T. 62; A. 67. After that day, DC 2454 did most of his work in his "main precinct," the 33rd Precinct. T. 61-63; A. 66-68. He continued to spend most of his time working in the 33rd Precinct until March 2008, when he was assigned to work a "long federal case" in Brooklyn. T. 49, 62-63; A. 54, 67-68. From then on, DC 2454 returned to work in the 33rd Precinct on Tuesdays and Thursdays each week and spent the rest of his time working in Brooklyn. T. 63-64; A. 68-69. He expected this arrangement to continue until at least December 2008 or January 2009, T. 49; A. 54, and did not know whether he would conduct another undercover operation near 4 DC 2454 served as the "primary" in the buy-and-bust operation while DC 5986 servedas the "ghost." 8 135th Street and Broadway - where Mr. Moss was arrested - in the future. T. 64; A. 69. The only definitive testimony that DC 2454 gave to suggest he would return to that area had to do with shopping, not undercover work: "I just happen to walk around the area because I like the area. They have a lot of clothing stores." T. 67; A. 72. DC 2454 also testified to receiving "approximately two or three" threats in the "vicinity" of 135th Street and Broadway, but noted that those threats had occurred "in the past" and were "nothing major." T. 57, 65-68; A. 62, 70-73. He claimed to have "[m]aybe 10" pending cases that related to his law enforcement efforts in the area, T. 51; A. 56, and "about two" defendants from other cases out on bail in the area. T. 58; A. 63. He also referenced "four to five subjects that are still pending on the case that I did on 144th Street" and "other individuals within 130[th Street] all the way up to like 178[th Street] that roam around in that whole area of Broadway," T. 57; A. 62, but testified that he had no lost subjects in the present case. T. 57; A. 62. The balance of DC 2454' s testimony addressed general safety risks, concerns, and practices of undercover officers and related experiences of his own. T. 52-56; A. 57-61. He described occasions on which he was physically threatened, verbally threatened, and/or patted down for weapons or recording devices, T. 52-56; A. 57-61, but did not testify that any of those experiences 9 occurred in the vicinity of 135th Street and Broadway. When asked if he was aware of any incident in which an undercover officer was injured in that particular area, DC 2454 testified: "not that I know of." T. 57; A. 62. DC 2454 also discussed precautions he took to protect his identity. When coming to the courthouse, he "parked [his] car in a safe area ... [and took] the side entrance." T. 58; A. 63. He added that, as a general matter, he did not use the main entrance to the courthouse and had seen "a sale subject in or around the area of the courthouse." T. 58; A. 63. DC 2454 also claimed that he was once recognized as an undercover officer in a prior buy-and-bust operation, T. 59; A. 64, but did not provide any further detail regarding that incident (e.g., where it took place). Other than general safety concerns, DC 2454 testified that he had no information or intelligence that led him to believe he faced any threats in connection with the present case. T. 65; A. 70. He had seen neither Mr. Moss nor any of the other defendants associated with this buy-and-bust operation before or after the arrests were made, did not know any of the defendants' family members, and had "no reason to believe that any family members of any of these individuals ... is involved in drug activities." T. 64-66; A. 69-71. Nor did he testify that any associates of Mr. Moss or his co-defendant, or targets of a related investigation, might be present in the courtroom. 10 Mr. Moss's trial counsel argued against closing the courtroom. He pointed out that "[t]his is a public courtroom" and that UC 2454's testimony revealed that the officer was "not really in [the relevant] neighborhood" and had "no specific threats from this case." T. 75-77; A. 80-82. Mr. Moss's trial counsel acknowledged UC 2454's "general safety concerns," T. 77; A. 82, but took the position that "a blanket closure for this, given what this specific undercover [UC 2454] said, would not be warranted." T. 77; A. 82. Instead, he proposed an alternative: [T]here'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. ... It will be a limiting closure to let Mr. Moss' family come in. If there's anyone suspicious of a dubious background who wants to come in, that could be taken up with the judge at an appropriate time. T. 76-77; A. 81-82. The prosecution argued that closure was appropriate because "the test has been met" and UC 2454 "does work in Manhattan North." T. 81; A. 86. "[I]t is Manhattan, your Honor. People go there. It's not like this is a remote area. It's the middle of Manhattan, so it makes sense that someone would go there." T. 82; A.87. At the conclusion of the Hinton hearing, the court ordered the courtroom sealed to the general public during the undercover officers' trial testimony, but limited the breadth of the closure by making exceptions for the attendance of 11 certain family members. T. 82-83; A. 87-88.5 In doing so, the trial court did not address the alternative proposed by Mr. Moss's trial counselor consider any other alternative to closing the courtroom to the general public. T. 72-73, 77, 82-83; A. 77-78,82,87-88. 5 The trial court held that, "[a]s to the general public enough has been shown as to both these individuals that would jeopardize their safety and job. I would exclude the general public. As to the family ... I think Mrs. Moss if she truly lives up in Webster Avenue in the Bronx, there would be no problem coming in. Because the family should be here, as long as they're not living in the area. But ... if they're living in the precise area where these officers are potentially coming back to, there can be a concern. I'll have to face those decisions when they arise." T. 82-83; A. 87-88. 12 ARGUMENT I. THE TRIAL COURT ERRED BY CLOSING THE COURTROOM TO THE GENERAL PUBLIC DURING THE TRIAL TESTIMONY OF THE UNDERCOVER OFFICERS The prosecution failed to prove that there was an overriding interest likely to be prejudiced absent courtroom closure during the trial testimony of UC 2454. Moreover, the trial court neglected to consider reasonable alternatives to closing the courtroom. Each of these defects contravenes an independent requirement of Waller v. Georgia, 467 U.S. 39 (1984). Mr. Moss was thereby deprived of his right to a public trial, as guaranteed by the United States Constitution and by New York statutory law, when the courtroom was closed to the general public during the trial testimony of UC 2454 and UC 5986. See U.S. Const. amends. VI, XIV; N.Y. Civ. Rights Law § 12 (McKinney 2009); N.Y. Jud. Law § 4 (McKinney Supp.2012). The United States Supreme Court "has made clear that the right to an open trial may give way in certain cases to other rights or interests . . . . Such circumstances will be rare, however, and the balance of interests must be struck with special care." Waller, 467 U.S. at 45. This Court has explicitly adopted the method by which to strike that balance, set forth by the United States Supreme Court in Waller, id. at 48. See People v. Martinez, 82 N.Y.2d 436, 441-42 (1993); People v. Kin Kan, 78 N.Y.2d 54, 58 (1991). The United States Supreme Court 13 reaffirmed this approach in Presley v. Georgia, 130 S. Ct. 721 (2010), articulating the four-prong test as follows: [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. Id. (alteration in original) (internal quotation marks and citation omitted). Unless each of these prongs is satisfied, courtroom closure is improper; a trial court's finding to the contrary constitutes reversible error "irrespective of prejudice." See People v. Martin, 16 N.Y.3d 607, 613 (2011); Kin Kan, 78 N.Y.2d at 59 (citing People v. Jones, 47 N.Y.2d 409,415-17 (1979)). The court at Mr. Moss's trial, while making an exception for certain family members of the accused, ordered the courtroom closed to the general public during the trial testimony of UC 2454 and UC 5986. T. 82; A. 88. In doing so, the trial court ran afoul of Waller and its progeny. More specifically, two of the four Waller prerequisites for courtroom closure were not satisfied: (1) the prosecution failed to prove that there was an overriding interest likely to be prejudiced absent courtroom closure during the trial testimony of UC 2454, and (2) the trial court neglected to consider reasonable alternatives to courtroom closure. Each failing resulted in the deprivation of Mr. Moss's right to a public trial and warrants reversing the decision of the lower court. 14 A. The Prosecution Failed to Prove That There Was an Overriding Interest Likely to Be Prejudiced Absent Courtroom Closure During the Trial Testimony of Undercover Officer 2454 Under Waller, the party seeking to close a hearing must advance an overriding interest that is likely to be prejudiced absent courtroom closure. The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Waller, 467 U.S. at 45 (internal quotation marks and citation omitted). In buy-and- bust cases like this one, the prosecution must establish an "overriding interest that open-court testimony by an undercover officer would jeopardize the officer's safety." People v. Jones, 96 N.Y.2d 213,214-15 (2001). This Court has held that such a showing 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 return to work there in the near future. 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. Absent such overbroad interpretations, in this case, UC 2454 did not testify that he continued to work, or would return to work, in a location that can reasonably be understood as "the specific area" of the charged offense. Therefore, any Hinton hearing testimony given by UC 2454 as to the purported risk associated 15 with ongoing or future work in the area of the sale was completely insufficient to establish an overriding interest likely to be prejudiced absent courtroom closure during his testimony at trial. The Waller standard is meant to be demanding and courtroom closure is supposed to be "rare." Presley, 130 S. Ct. at 724; see also People v. Hinton, 31 N.Y.2d 71, 75-76 (1972) ("[W]e need only point out that the discretion be sparingly exercised and then, only when unusual circumstances necessitate it."). "[T]he proponent of closure must establish a 'substantial probability' that the articulated interest will be prejudiced by an open courtroom." Ramos, 90 N.Y.2d at 498. The "mere possibility" that the government's interest in protecting the identity of its undercover officer "might be compromised by open-court testimony does not justify abridgement of a defendant's constitutional right to a public trial." Id. The evidence presented at the Hinton hearing prior to Mr. Moss's trial does not satisfy this standard and, thus, cannot justify courtroom closure. Nonetheless, the Appellate Division found that: The evidence at a Hinton hearing established an overriding interest that warranted closure of the courtroom. The undercover officer 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 working in the area, and that he took precautions when entering the courthouse to protect his identity. Moss, 89 A.D.3d at 600 (citations omitted). Examination of the record reveals that these assertions are without support and/or of little import. 16 1. DC 2454 Did Not Testify That He Continued to Work in the Specific Area of the Charged Offense and Could Not Testify That He Would Return to Work There in the Future In People v. Pearson, which was decided in conjunction with People v. Martinez, 82 N.Y.2d 436 (1993), this Court approved a closure order where the officer testified that she expected to return to the Port Authority Bus Terminal - the location of the charged offenses - that very same day." Id. at 443. Here, by contrast, DC 2454 did not testify that he would continue to work in the specific area of the charged offense and could not testify that he planned to return to work there in the future. Instead, DC 2454 testified that, though currently assigned to work in Brooklyn on a "long federal case," he returned to work in the 33rd Precinct - his "main precinct" - on Tuesdays and Thursdays each week. T. 47, 49, 63-64; A. 52, 54, 68-69. Significantly, DC 2454 also testified that he had not worked in the area of 135th Street and Broadway - in the 30th Precinct, where Mr. Moss was arrested - since being assigned to Brooklyn in March 2008,7 that he 6 7 "In her testimony, the undercover officer identified a particular location - Port Authority in Manhattan, the site of the defendant's arrest - readily accessible from the Manhattan courthouse, at which she had functioned daily for a month, and to which she would return as an undercover that very day to complete her work with drug dealers." Martinez, 82 N.Y.2d at 443. DC 2454 was not clear regarding whether he had even worked there as recently as March 2008. In response to being asked how recently he "made a buy in [the] 135th and Broadway area," DC 2454 responded: "I finished the case I was working on in the perimeter ofthat location around March." T. 51-52; A. 56-57 17 could not predict his schedule going forward, and that he did not know whether he would be making buys at 135th Street and Broadway in the future. T. 51-52,63- 64; A. 56-57, 68-69. Thus, for the Appellate Division to be correct in holding that DC 2454 testified "that he continued to work in ... the area of the sale," Moss, 89 A.D.3d at 600, "the area of the sale" would have to include an area at least one to two miles from the actual location of the charged offense; it would have to mean returning to a locale that is not in the specific area, neighborhood, or precinct in which the charged offense occurred. Such an interpretation of "area of the sale" is overbroad and inconsistent with the right to a public trial, which "has long been regarded as a fundamental privilege of the defendant in a criminal prosecution." Martin, 16 N.Y.3d at 611 (internal quotation marks and citation omitted). Furthermore, the only testimony DC 2454 gave to suggest he would return to the actual area of the sale was that he would go there voluntarily, in his free time, to shop: "I just happen to walk around the area because 1 like the area. They have a lot of clothing stores." T. 67; A. 72. Shopping there, however, hardly qualifies as the sort of future work that could have justified closing the courtroom to the (emphasis added). The record provides no detail as to what DC 2454 considers to qualify as the "perimeter of that location." 18 general public during the testimony of DC 2454 in this case. Any connection between DC 2454' s testimony at Mr. Moss's trial and the possibility that he would be recognized while on assignment was so remote as to be non-existent, a reality that illustrates the extremely overbroad reading upon which the Appellate Division's decision to affirm is based. 2. DC 2454's Testimony Regarding Pending Cases, Threats, and Precautions Taken Provided No Basis for Courtroom Closure The Appellate Division also relies on DC 2454's testimony "that he had pending cases connected with that area, that he had been threatened while working in the area, and that he took precautions when entering the courthouse to protect his identity." Moss, 89 A.D.3d at 600. While DC 2454 testified to having been threatened "approximately two or three" times in the "vicinity" of 135th Street and Broadway, he also testified that those threats had occurred "in the past" and were "nothing major." T. 57, 65-68; A. 62, 70-73. DC 2454 did not provide further detail regarding those incidents, but did testify that he had not received threats of any kind in connection with the present case and had no reason to believe such threats existed. T. 65; A. 70. As such, the "two or three" threats occurring somewhere in the "vicinity" of 135th Street and Broadway at some unspecified time in the past are hardly sufficient to satisfy the particularized showing required by this Court. See People v. Ramos, 90 N.Y.2d 490,498 (1997) ("[A] specific link must be made between the officer's safety concerns and open-court testimony in 19 the particular buy-and-bust case.") (citation omitted). Regardless, absent an overbroad interpretation of "area of the sale," these minor threats do not support closure; nor do the "pending cases connected with that area," Moss, 89 A.D.3d at 600, and for the same basic reason: DC 2454 did not testify that he continued to work, or would return to work, in a location that can reasonably be understood as "the area of the sale." Therefore, the supposed risks associated with returning to work in the area did not exist. Furthermore, not even the possibility of DC 2454 returning to work in that area at some indeterminate point in the future would suffice to render such "threats" or "pending cases" meaningful, for this Court has clearly 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." Jones, 96 N.Y.2d at 217 (emphasis in original) (internal quotation marks and citation omitted). Finally, while DC 2454 testified that "he took precautions when entering the courthouse to protect his identity," Moss, 89 A.D.3d at 600, 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 if the courtroom was not closed." Martinez, 82 N.Y.2d at 443. DC 2454's testimony that he took precautions to protect his identity amounts to nothing more than a manifestation of "the officer's own 20 assertions" as described in Martinez and, as such, was insufficient to warrant courtroom closure in the present case. Further, there is no judicial precedent for finding that an undercover officer's taking precautions to protect his or her safety is independently sufficient to warrant courtroom closure. 3. The Rest of UC 2454's Testimony is Equally Insignificant DC 2454 made a number of generalized assertions, accompanied by personal anecdotes, about the risk of undercover narcotics work. Courts have repeatedly declared such testimony insufficient to establish the requisite "overriding interest." Martinez, 82 N.Y.2d at 442 ('''There should have been a factual showing that an exception to the norm of a public trial was justified ... That undercover work at times entails serious threats to the safety of agents was by no means sufficient to connect that threat to this witness."') (citing People v. Jones, 47 N.Y.2d 409,415 (1979)); People v. Vargas, 244 A.D.2d 367, 368 (2d Dep't 1997) (perfunctory showing that officer had "generalized fear that if his identity became known, certain unspecified people might want to 'hurt' or possibly even 'kill' him," insufficient to justify closure) (citation omitted). Furthermore, nowhere in the record are any these assertions or anecdotes linked to 135th Street and Broadway, the 30th Precinct or, with one exception, any 21 area at all." These matters lend no support whatsoever to the suggestion that the requisite overriding interest was established. * * * While there may always be some hypothetical "possibility" of prejudice to an officer's safety or effectiveness, the evidence at the Hinton hearing did not establish the likelihood of such a threat, or the requisite "specific link" or "nexus" between any potential threats to the officer and the requirement that he testify publicly at this particular trial. Ramos, 90 N.Y.2d at 498. The trial court's order closing the courtroom to the general public thus violated Mr. Moss's constitutional right to a public trial. By affirming that order, the Appellate Division read the holdings of this Court far too expansively. Under the Appellate Division's decision here, an undercover officer could testify that he or she was working or about to return to work virtually anywhere in half of the entire borough of Manhattan and satisfy the evidentiary standard for establishing an overriding interest likely to be prejudiced absent courtroom 8 The only occurrence that DC 2454 tied to any location took place in Coney Island. T. 54-55; 59-60. Coney Island is nowhere near the area in which Mr. Moss was arrested. 22 closure." That is clearly inconsistent with this Court's holding that "[t]here remains ... a presumption of openness .... and the balance of interests must be struck with special care." Id. at 497 (internal quotations and citation omitted). The approach taken by the lower courts here is far more like the "rule ofper se closure" that this Court "refused ... to sanction ... for all active undercover officer witnesses." Id. 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.'" Jones, 96 N.Y.2d at 217 (citation omitted). The evidence at the Hinton hearing did not support a finding that giving open-court testimony at Mr. Moss's trial was "likely" to jeopardize UC 2454's safety or effectiveness as an undercover police officer. Waller, 467 U.S. at 48. This Court should therefore order a new trial. 9 This Court need look no further than the prosecution's argument at the Hinton hearing to see that it already takes this extreme view: "[I]t'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 area. It's the middle of Manhattan, so it makes sense that someone would go there." T. 81-82; A. 86-87. 23 B. The Trial Court Failed to Consider Reasonable Alternatives to Courtroom Closure Before closing a courtroom proceeding to the public, the trial court must consider reasonable alternatives to doing so. Waller v. Georgia, 467 U.S. 39, 48 (1984). The United States Supreme Court reaffirmed as much in Presley v. Georgia, holding that "trial courts are required to consider alternatives to closure even when they are not offered by the parties" and, furthermore, that "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." 130 S. Ct. 721, 724-25 (2010). Citing Presley, this Court held similarly in People v. Martin, 16 N.Y.3d 607, 612 (2011) ("The court is required to consider alternatives even if neither party suggests any. Consequently, pursuant to Presley, the trial court's failure to consider any alternate accommodations violated defendant's right to an open trial.") (citation omitted). Although the Appellate Division found otherwise," the record here makes plain that the trial court failed to follow this clear mandate. In fact, the record is completely bereft of evidence that the trial court considered any alternative to closing the courtroom to the general public during the trial testimony of the 10 "Instead of ordering a complete closure, the court permitted defendant's family to attend. In addition, it considered but rejected an alternative to closureproposedby defendant. Accordingly, the court satisfied the Waller requirement of considering alternatives to full closure." People v. Moss, 89 A.D.3d 600, 600-601 (lst Dep't 2011 ) (citations omitted). 24 undercover officers. It registered no reaction whatsoever to the alternative proposed by Mr. Moss's trial counsel, T. 76-77; A. 81-82,11 and there is no indication that it considered any alternatives of its own. This Court once held that "it is surely the better practice, and indeed may be the required practice, for a trial court explicitly . . . to explore reasonable alternatives to closure." People v. Martinez, 82 N.Y.2d 436, 444 (1993). Any lingering doubts as to the requirement of such a practice were laid to rest in Presley and Martin, which also had the effect of rendering part of this Court's holding in Ramos - that "the party opposed to closing the proceeding must alert the court to any alternative procedures" - obsolete. 90 N.Y.2d at 504. "The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear .... The public has a right to be present whether or not any party has asserted the right." Presley, 130 S. Ct. at 724-25. Here, as in Presley, "[n]othing in the record shows that the trial court could not have accommodated the public," id. at 725, and, as in Martin, "[t]he record does not reflect that the court considered alternatives to closure." 16 N.Y.3d at 610. 11 The trial court's willingness to exclude certain family members of the Mr. Moss's trial counsel argued that: "A court officer can be stationed at the door ... to see who's coming in, what business they have here.... If there's anyone suspicious or of a dubious background who wants to come in, that could be taken up with the judge at an appropriate time." T. 76-77; A. 81-82. 25 accused from a general closure order does not excuse this failing, for such an exclusion is not an alternative to closure under the third Waller prong, but a limitation on the breadth of closure under the second Waller prong. In New York, the exclusion of a defendant's family members from a criminal trial requires a more specific showing than exclusion of the general public. See People v. Kin Kan, 78 N.Y.2d 54, 58-59 (1991). This is because, as recognized by this Court, a closure order that makes no exception for family members is likely to be overbroad. The applicable general rule is stated in [Waller]: in exceptional cases a courtroom may be closed to the general public to protect an overriding interest, but the closure must be no broader than necessary to protect that interest. A number of our cases applying this rule establish that an order of closure that does not make an exception for family members will be considered overbroad .... People v. Nazario, 4 N.Y.3d 70, 72-73 (2005) (internal quotation marks and citations omitted). See also People v. Gutierez, 86 N.Y.2d 817, 818 (1995) (exclusion of defendant's family members found "broader than constitutionally tolerable"); Kin Kan, 78 N.Y.2d at 58-59 (same). Thus, excluding a defendant's family members from a general closure order does not qualify as an alternative to closing the courtroom and, as such, cannot satisfy Waller's third prong. The Sixth Amendment protects the right to a "public" trial - a courtroom "open to all who care[] to observe." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564 (1980). "[T]he sure knowledge that anyone is free to attend gives 26 assurance that established procedures are being followed and that deviations will become known." Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501, 508 (1984). Reducing it to a right to have certain family members attend courtroom proceedings would effectively strip defendants without family members (or relations special enough to qualify as familial in nature under Nazarioyz seeking to attend their trials of a constitutionally-guaranteed right; a result that simply cannot be. Put simply, a courtroom open to certain family members of the accused but closed to the general public is a closed courtroom. Here, the trial court cleared the courtroom of spectators for the testimony of both undercover officers. Under such circumstances, it cannot be said that the court considered, much less adopted, any alternative to closure. By neglecting to "take every reasonable measure to accommodate public attendance," Presley, 130 S. Ct. at 725, the trial court violated Mr. Moss's right to a public trial. Such violations are "not subject to harmless error analysis and a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee." Martin, 16 1Z [W]here the defendant has shown that there is a special relationship between a proposed spectator and the defendant of a kind that enables the proposed spectator to give the defendant the kind of moral and emotional support that might be expected from a family member, the trial court should admit that spectator to an otherwise closed courtroom unless the prosecution shows a specific reason for his or her exclusion. People v. Nazario, N.Y.2d 70, 71 (2005). 27 N.Y.3d at 613 (internal quotation marks and citation omitted). A new trial is therefore required. * * * In sum, the trial court should not have closed the courtroom to the public during this routine buy-and-bust case where the undercover officer did not testify that he had ongoing or future work in the specific area of the charged offense. To do so was a violation of Andrew Moss's constitutional right to a public trial. In practice, the lower courts are not giving full effect to the United States Supreme Court's decision in Presley or this Court's decision in Martin. Thus, the time is ripe for this Court to make clear that the right to a public trial is guaranteed to defendants facing criminal charges in New York courts and that paying mere lip service to that right will not suffice. Otherwise, the now-routine practice of closing the courtroom whenever an undercover police officer testifies will undoubtedly continue. 28 CONCLUSION For the reasons stated above, this Court should reverse Mr. Moss's conviction. Dated: May 14,2012 New York, New York Respectfully submitted, RICHARD M. GREENBERG, ESQ. JOSEPH M. NURSEY, ESQ. Attorneys for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Phone: (212) 402-4100 Fax: (212) 402-4199 By: -+--/-----!~~--=------- P RL. JENNIFE . COLYER, ESQ. JUSTIN M. ROSS, ESQ. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza New York, New York 10004 Phone: (212) 859-8000 Fax: (212) 859-4000 29