The People, Respondent,v.Martin Johnson, Appellant.BriefN.Y.March 18, 2013 To be argued by DAVID P. STROMES (20 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MARTIN JOHNSON, 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 DAVID P. STROMES ASSISTANT DISTRICT ATTORNEYS Of Counsel FEBRUARY 14, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTIONS PRESENTED .............................................................................................. 2 INTRODUCTION................................................................................................................ 3 POINT I DEFENDANT’S HINTON CLAIM IS LARGELY UNPRESERVED AND WHOLLY MERITLESS ................................... 6 POINT II THE JUDGE PROPERLY DECLINED TO CHARGE THE JURY THAT, IN ASSESSING THE AGENCY DEFENSE, IT COULD CONSIDER WHETHER DEFENDANT HAD PREVIOUSLY SOLD DRUGS, BECAUSE THE JURY HAD HEARD NO EVIDENCE ON THAT SCORE, AND PERMITTING IT TO CONSIDER A FACTOR NOT IN EVIDENCE WOULD HAVE AMOUNTED TO AN INSTRUCTION COUNTENANCING SPECULATION .................................................. 44 CONCLUSION ................................................................................................................... 58 -ii- TABLE OF AUTHORITIES FEDERAL CASES Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) .............................................................passim Batson v. Kentucky, 476 U.S. 79 (1986) ....................................................................... 16-17 Bowden v. Keane, 237 F.3d 125 (2d Cir. 2001) ................................................................ 36 Carson v. Fischer, 421 F.3d 83 (2d Cir. 2005) ...................................................... 21, 36, 40 Downs v. Lape, 657 F.3d 97 (2d Cir. 2011), cert denied Downs v. Bellnier, 132 S. Ct. 2439 (2012) .............................................. 19 Estes v. State of Tex., 381 U.S. 532 (1965) (Harlan, J., concurring) .............................. 34 Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ............................................................. 37 Globe Newspaper Co. v. Super. Ct. for Norfolk County, 457 U.S. 596 (1982) ........... 37 In re Oliver, 333 U.S. 257 (1948).................................................................................. 21, 34 Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996) ............................................................... 23 Presley v. Georgia, 130 S. Ct. 721 (2010) ........................................................ 18-19, 35, 37 Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501 (1984) ..................................... 37 Press-Enterprise Co v. Super. Ct. of Cal., 478 U.S. 1 (1986) ..................................... 36-37 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ....................................... 37 Sevencan v. Herbert, 342 F.3d 69 (2d Cir. 2002) ............................................................. 38 Sheppard v. Maxwell, 384 U.S. 333 (1966) ........................................................................ 49 Waller v. Georgia, 467 U.S. 39 (1984) ...........................................................................passim STATE CASES People v. Ahmed, 66 N.Y.2d 307 (1985) ........................................................................... 14 People v. Alvarez, 20 N.Y.3d 75 (2012) ...................................................................... 14, 41 -iii- People v. Alvarez, 51 A.D.3d 167 (1st Dep’t 2008) ......................................................... 41 People v. Aponte, 238 A.D.2d 169 (1st Dep’t 1997) ....................................................... 30 People v. Argibay, 45 N.Y.2d 45 (1978) ............................................................................ 49 People v. Arnold, 96 N.Y.2d 358 (2001) ........................................................................... 49 People v. Ashwal, 39 N.Y.2d 105 (1976) ........................................................................... 49 People v. Baez, 162 A.D.2d 602 (2d Dep’t 1990) ............................................................ 16 People v. Chase, 265 A.D.2d 844 (4th Dep’t 1999) ......................................................... 16 People v. Creech, 60 N.Y.2d 895 (1983) ........................................................................... 18 People v. De Jesus, 42 N.Y.2d 519 (1977) ........................................................................ 49 People v. De Jesus, 69 N.Y.2d 855 (1987) .................................................................. 14, 20 People v. Dean, 88 A.D.3d 578 (1st Dep’t 2011) ............................................................. 38 People v. Diaz, 237 A.D.2d 457 (2d Dep’t 1997) ............................................................. 31 People v. Feldman, 50 N.Y.2d 500 (1980) ........................................................................ 48 People v. Frost, 100 N.Y.2d 129 (2003) ............................................................................ 40 People v. Garcia, 95 N.Y.2d 946 (2000) ............................................................................ 15 People v. Gonzalez, 214 A.D.2d 308 (1st Dep’t 1995).................................................... 53 People v. Gutierez, 86 N.Y.2d 817 (1995) ................................................................... 38-39 People v. Herring, 83 N.Y.2d 780 (1994) ..................................................................... 54-56 People v. Hinton, 31 N.Y.2d 71 (1972) ........................................................................passim People v. Johnson, 88 A.D.3d 503 (1st Dep’t 2011) .................................... 4-5, 26, 35, 40 People v. Jones, 47 N.Y.2d 409 (1979) .................................................................. 21-23, 41 People v. Jones, 96 N.Y.2d 213 (2001) .........................................................................passim People v. Kello, 96 N.Y.2d 740 (2001) ........................................................................ 48, 54 -iv- People v. Kin Kan, 78 N.Y.2d 54 (1991) ........................................................ 22, 30, 38-39 People v. Kinard, 215 A.D.2d 591 (2d Dep’t 1995) ......................................................... 50 People v. Latta, 222 A.D.2d 303 (1st Dep’t 1995) ........................................................... 16 People v. Linares, 305 A.D.2d 259 (1st Dep’t 2003) ....................................................... 16 People v. Luperon, 85 N.Y.2d 71 (1995) ..................................................................... 14, 21 People v. Manning, 78 A.D.3d 585 (1st Dep’t 2010), lv. denied 16 N.Y.3d 861 (2011) ................................................................................... 18 People v. Martin, 16 N.Y.3d 607 (2011) ...................................................................... 18, 42 People v. Martinez, 82 N.Y.2d 436 (1993) ...................................................................passim People v. Michael, 48 N.Y.2d 1 (1979) .............................................................................. 13 People v. Mickens, 82 A.D.3d 430 (1st Dep’t 2011) ........................................................ 38 People v. Nazario, 4 N.Y.3d 70 (2005) ......................................................................... 38-39 People v. Nieves, 90 N.Y.2d 426 (1997)............................................................................ 15 People v. O’Conner, 90 A.D.3d 431 (1st Dep’t 2011) ..................................................... 38 People v. Payne, 88 N.Y.2d 172 (1996) ............................................................................. 17 People v. Ramos, 90 N.Y.2d 490 (1997) ......................................................................passim People v. Reed, 46 A.D.3d 285 (1st Dep’t 2007) ............................................................. 15 People v. Richardson, 100 N.Y.2d 847 (2003) .................................................................. 17 People v. Robinson, 36 N.Y.2d 224 (1975) ................................................................. 13, 21 People v. Roche, 45 N.Y.2d 78 (1978) ........................................................................ 48, 53 People v. Rodriguez, 93 A.D.3d 595 (1st Dep’t 2012) .................................................... 17 People v. Sanabria, 301 A.D.2d 307 (1st Dep’t 2002) ..................................................... 41 People v. Smocum, 99 N.Y.2d 418 (2003) ........................................................................ 17 People v. Starling, 85 N.Y.2d 509 (1995) .................................................................... 48, 56 -v- People v. Udzinski, 146 A.D.2d 245 (2d Dep’t 1989) ................................................ 13-14 People v. Watson, 20 N.Y.3d 182 (2012) .......................................................................... 48 People v. Williams, 10 A.D.3d 213 (1st Dep’t 2004), aff’d 5 N.Y.3d 732 (2005) .............................................................................................. 50 People v. Williams 5 N.Y.3d 732 (2005) ............................................................................ 53 People v. Williams, 287 A.D.2d 337 (1st Dep’t 2001) ............................................... 16, 53 People v. Wooten, 221 A.D.2d 674 (2d Dep’t 1995) ....................................................... 16 STATE STATUTES Civil Rights Law § 12 ........................................................................................................... 21 CPL 470.05(2) ........................................................................................................... 13, 15, 21 Judiciary Law § 4 ................................................................................................................... 21 Penal Law § 220.00(1) .......................................................................................................... 48 Penal Law § 220.39(1) ............................................................................................................ 1 Penal Law § 220.44(2) ............................................................................................................ 1 OTHER AUTHORITIES CJI 2d [NY] Defenses - Agency ......................................................................................... 46 CJI 2d [NY] Preface ............................................................................................................. 47 Oxford English Dictionary ................................................................................................. 29 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MARTIN JOHNSON, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Theodore T. Jones, granted on October 29, 2012, defendant Martin Johnson appeals from an October 13, 2011 order of the Appellate Division, First Department. That order affirmed a December 7, 2009 judgment of Supreme Court, New York County (A. Kirke Bartley, J.), convicting defendant, after a jury trial, of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) and Criminal Sale of a Controlled Substance In or Near School Grounds (Penal Law § 220.44[2]) and sentencing him as a second felony drug offender to concurrent three-year prison terms, to be followed by two years of post-release supervision. Defendant has served his prison term and is currently under post-release supervision. -2- QUESTIONS PRESENTED 1. Where defendant opposed closure of the courtroom during the testimony of two undercover officers solely on the ground that they “displayed their police shields to a court officer to gain entry to the building,” and thus “did not evade being seen by the public in a courthouse,” did defendant preserve the myriad of specific claims that he raises on appeal, including that: a) the officers’ testimony regarding the geographic area in which they worked undercover was too general; b) the officers did not testify with specificity as to when they planned to return to the area of the charged sale; c) the officers did not testify that they had ever been threatened by anyone involved in this case; d) the court failed to consider alternatives to closure; e) the court’s compromise of a limited closure did not amount to an alternative to complete closure; f) the court should have considered positing a court officer at the door to screen those who wished to enter the courtroom; and g) the court did not make adequate record findings to support its decision? 2. Assuming, arguendo, that the issue has been preserved, may a judge order a limited closure of a courtroom during an undercover officer’s testimony after learning that the officer: a) has open cases in the vicinity of the instant crime; b) has lost subjects and current, at-large defendants from that vicinity; c) has worked undercover in the area of the instant crime within the preceding two weeks; d) expects to return to that area in the future; e) has been threatened with violence by past subjects; f) refrains from dressing like, or associating with, other police officers when coming to court; and g) would fear for his safety if forced to testify in open court? 3. Assuming, arguendo, that the issue has been preserved, after the court agreed with the People’s assertion that there existed “no lesser option than to close the courtroom” to all but defendant’s family and legal counselors, and where defendant sought no further relief, was the court required to expressly pronounce and reject additional alternatives to closure that defendant never suggested? 4. Following a trial in which the jury heard no evidence indicating whether or not defendant had ever been involved with prior drug sales, was the judge required to charge the jury that a factor in favor of the agency defense is that “defendant had not at any other time engaged in the sale of a controlled substance . . . or, the possession of a controlled substance with the intent to sell it” -- a factor that the CJI expressly makes optional, to be included only when relevant? -3- INTRODUCTION On the afternoon of April 23, 2009, an NYPD undercover buy-and-bust squad consisting of two undercover officers -- UC 206 and UC 14 -- and a field team deployed near the intersection of East 128th Street and Park Avenue in East Harlem. A short time later, defendant walked up to UC 206 and asked what he was looking for. UC 206 said he wanted to buy crack. Instructing UC 206 to follow, defendant led the undercover officer to Lexington Avenue, turned north, bypassed one housing project where the police had purchased narcotics on numerous occasions in the past, and then stopped in front of the building at East 132nd Street and Park Avenue. That building was another housing project, and it stood 925 feet from the Freet R. Moore public elementary school. Because, according to defendant, sellers inside that project would not sell drugs to a stranger, defendant took $20 from UC 206 and directed him to wait in front of the building while defendant went inside to get the drugs. Defendant emerged about one minute later, handed the officer crack wrapped in plastic, and departed. Members of the field team apprehended defendant shortly thereafter. UC 206 and UC 14 -- the “ghost” officer who had shadowed UC 206 during the drug deal -- drove by defendant and confirmed his identity as the seller. At the time of his arrest, defendant had a crack pipe containing cocaine residue, but did not possess the buy money or additional drugs. By New York County Indictment Number 2518/09, filed May 15, 2009, a grand jury charged defendant with one count each of Criminal Sale of a Controlled -4- Substance in the Third Degree and Criminal Sale of a Controlled Substance In or Near School Grounds. On November 2, 2009, following a suppression hearing not at issue on appeal, defendant proceeded to trial before the Honorable A. Kirke Bartley, Jr. and a jury. Justice Bartley conducted a Hinton hearing at which both UC 206 and UC 14 testified. Afterwards, the judge ordered the closure of the courtroom to a “limited extent”; as an alternative to complete closure, the judge ruled that he would close the courtroom only during the testimony of the undercover officers, and that the closure order would exclude the general public, but permit the presence of defendant’s family and personnel from defense counsel’s office. At trial, defendant raised the agency defense by positing, through his attorney and without presenting any evidence, that he had acted solely as the agent of the undercover officer, for whom he had obtained the crack as a favor. On November 5, 2009, the jury convicted defendant of both charges. On December 7, 2009, defendant was sentenced as noted above. Defendant appealed to the Appellate Division, First Department, claiming, among other things, that the partial closure of the courtroom during the undercover officers’ testimony deprived him of his right to a public trial and that the court’s agency charge unfairly prejudiced him. In a decision dated October 13, 2011, the Appellate Division unanimously rejected defendant’s claims. People v. Johnson, 88 A.D.3d 503 (1st Dep’t 2011). With respect to the Hinton issue, the Court ruled that the People had “made a sufficiently particularized showing of an overriding interest -5- justifying closure of the courtroom during the undercover officers’ testimony.” Id. at 503. This showing “included evidence that the officers expected to return to the vicinity of defendant’s arrest for further undercover operations, that unapprehended subjects of investigations remained at large, that the officers had been threatened in other undercover investigations, and that the officers took precautions to conceal their identity.” Id., citing People v. Ramos, 90 N.Y.2d 490 (1997). The Court noted, too, that the judge did not order “a complete closure of the courtroom”; rather, he permitted defendant’s family to attend. Recounting that defendant had “only challenged the sufficiency of the People’s showing,” the Court found defendant’s “remaining arguments concerning the court’s closure ruling” unpreserved. Johnson, 88 A.D.3d at 503. The Court alternatively rejected those arguments on the merits. Finally, the court held that defendant’s challenge to the court’s charge “d[id] not warrant reversal.” Id. at 504. On appeal to this Court, defendant reprises those same claims. As the Appellate Division found, the Hinton claims are largely unpreserved, and all of defendant’s claims are meritless. -6- POINT I DEFENDANT’S HINTON CLAIM IS LARGELY UNPRESERVED AND WHOLLY MERITLESS (Answering Defendant’s Brief, Point I). On appeal, defendant claims that Justice Bartley erred in closing the courtroom to the general public for the portion of the trial during which the undercover officers testified. Specifically, he contends that the People’s showing at the Hinton hearing was inadequate on the grounds that: the officers’ testimony regarding the geographic area in which they worked undercover was too general; the officers did not testify with specificity as to when they planned to return to the area of the charged sale; and the officers did not sufficiently establish that they feared for their safety, given that they did not testify that they had ever been threatened by anyone involved in this particular case (Defendant’s Brief: 19-29). Despite Justice Bartley’s decision to close the courtroom only during the undercover officers’ testimony, and, even then, to exempt defendant’s family and legal personnel from the closure order, defendant claims that the judge ordered a complete closure, and he faults the judge’s failure to expressly raise, and then reject, other alternatives that defendant never requested (Defendant’s Brief: 30-32). Finally, defendant complains that Justice Bartley did not make adequate record findings to support his decision to close the courtroom on the limited basis described above (see Defendant’s Brief: 33-34). All of these specific claims are unpreserved, thus precluding review by this Court. They are meritless as well. -7- A. The Hinton Hearings On November 2, 2009, Justice Bartley held Hinton hearings at which two undercover police officers -- UC 206 and UC 14 -- testified. Both officers were assigned to Manhattan North Narcotics (UC 206: A21; UC 14: A27-28).1 UC 206 The Manhattan North Narcotics division of the NYPD conducts operations from the southern end of Central Park to the northern tip of Manhattan (UC 206: A22). UC 206 had worked with Manhattan North for 10 months, “exclusively” as an undercover officer (UC 206: A21). At the time of the hearing, approximately 10 indictments concerning narcotics buys that UC 206 had made in an undercover capacity were open and pending (UC 206: A22). Those 10 cases arose from undercover buys that UC 206 had made “within areas of Harlem, Washington Heights, [and] Morningside Heights,” but “almost all” of them concerned buys made “within the vicinity where this case took place” (UC 206: A22). More than five defendants in the noted cases were at liberty on bail or had been released on their own recognizance (UC 206: A23). Additionally, “about 20” individuals from whom UC 206 had purchased drugs were “lost subjects,” meaning they had evaded arrest after selling to UC 206 and were still at large (UC 206: 1 Citations preceded by “A” are to defendant’s appendix. -8- A23). UC 206 had been involved in an undercover operation “in the area” of defendant’s arrest as recently as two weeks before the hearing, and he expected to return to that area “for future investigations” (UC 206: A23-24).2 UC 206 had taken precautions when he came to testify at the Hinton hearing: he dressed in civilian clothes; did not travel in a marked police car or mingle with uniformed officers; and did not display his police shield, except to a court officer who allowed him to bypass a metal detector at the public entrance to the 100 Centre Street courthouse (UC 206: A24-28). UC 206 rode a public elevator to the 15th floor, where Justice Bartley’s courtroom was located (UC 206: A28). When UC 206 testified in the grand jury, he identified himself only by his shield number. When defendant testified in the grand jury, UC 206 “stay[ed] in a separate room that is blocked from the public view” (UC 206: A25). Were UC 206’s identity as an undercover officer to become known, he would have no further “usefulness” as an undercover officer, and his safety would be jeopardized (UC 206: A21-25). Indeed, UC 206 had been threatened by drug dealers in the past: he had been “struck upside the head,” and had “had an object thrown at” him (UC 206: A25). 2 The prosecutor used male pronouns when referring to the undercover officers. -9- UC 14 UC 14 had been working exclusively undercover in Manhattan North for 13 years (UC 14: A28). The areas in which he had bought drugs ranged from 59th Street to Inwood (UC 14: A28). At the time of the hearing, UC 14 had 15 to 20 open cases in which he had acted as an undercover officer, and the defendants were at large (UC 14: A28-29). Additionally, at that time, UC 14’s recent cases had resulted in 8 to 12 lost subjects (UC 14: A29). Some of UC 14’s open cases concerned incidents that had occurred in “the same vicinity as where this case occurred” (UC 14: A29). Indeed, since defendant’s April 23 arrest, UC 14 had participated in approximately 50 attempted undercover buys in the noted vicinity (UC 14: A29-30). UC 14 expected to return to that vicinity for future investigations (UC 14: A30). UC 14 took essentially the same precautions as those taken by UC 206 to avoid revealing his identity at the 100 Centre Street courthouse (UC 14: A30-32). UC 14 first entered the District Attorney’s Office at One Hogan Place, which occupies part of the larger building in which the 100 Centre Street courthouse is located, where he gained entry by showing police identification to a security officer (UC 14: A30-32).3 Next, UC 14 took a private elevator to the seventh floor of the District Attorney’s 3 One Hogan Place is a side entrance of the building at 100 Centre Street. Floors six through nine -- which house the District Attorney’s Office -- are used by office personnel, witnesses, and other visitors. -10- Office; there, he entered the courthouse and rode a public courthouse elevator up to the 15th floor, where Justice Bartley’s courtroom was located (UC 14: A30-32). UC 14 previously had been threatened and attacked as a result of his undercover work (UC 14: A31). In one incident, he was told, “If I find out you are a cop, I’m going to shoot you” (UC 14: A31). Other individuals had threatened UC 14 with guns, sometimes opening fire (UC 14: A31). Indeed, on at least one occasion, UC 14 had “had to dive behind a vehicle” to avoid being shot (UC 14: A31). Were UC 14’s identity as an undercover officer to become known, he “wouldn’t be able to do his job,” and his safety would be jeopardized (UC 14: A31). Argument and Decision After the defense declined to present any evidence of its own, counsel asked that the courtroom be kept open during the testimony of both undercover officers (A32). Counsel’s argument was short: [Both officers] indicated that they had displayed their police shields to a court officer to gain entry into the building at least in part came up through the public elevators to the courtroom, and did not in any way evade being seen by the public in a courthouse or evade being seen by the public at the time that they have displayed their shields to a court officer at the entrance of the building. For that reason I ask their testimony be open to the public. (A33). The defense made no other arguments at all, let alone any related to the proposed temporary restriction on public access to the courtroom. -11- The prosecutor responded, Your Honor, both officers testified that they are currently undercover officers with ongoing investigations in Manhattan. Both officers testified that they do have lost subjects on cases that they, they have ongoing. They both indicated their usefulness as an undercover officer and their safety would be compromised if the courtroom would not be closed. (A33). The prosecutor concluded that “there is no lesser option other than to close the courtroom to everyone, obviously [sic], the defendant’s attorney and any immediate family” (A33-34).4 Justice Bartley credited the testimony of both undercover officers and noted that they “are still actively engaged in undercover activity in the vicinity involved in these allegations” (A34). The judge also found that both officers were “concerned for their respective safety as undercovers working in these, in this particular area” (A34). The judge then granted the People’s application “to the limited extent” of ordering a partial closure the courtroom during the undercover officers’ testimony, so as to exclude everyone except “close family members of the defendant and also members of defense counsel’s office” (A34). The judge also granted the People’s application to allow the officers to testify “using only their shield numbers” to identify themselves (A34). Defendant registered no objection to the court’s ruling, and he made no 4 The prosecutor presumably said, or meant to say, “obviously excepting, the defendant’s attorney and immediate family.” -12- suggestions regarding additional alternatives to the limited closure order that the judge devised. B. Because Defendant’s sole objection below to the closure of the courtroom was that the undercover officers had displayed their shields to a court officer in order to enter the building, most of the Hinton claims he now raises are unpreserved. As a threshold matter, the preservation rules bar most of defendant’s present claims. Defendant advances many arguments before this Court, including that: a) the officers’ testimony regarding the geographic area in which they worked undercover was too general; b) the officers did not testify with specificity as to when they planned to return to the area of the charged sale; c) the officers did not testify that they had ever been threatened by anyone involved in this case; d) the court failed to consider alternatives to closure; e) the court’s compromise of a limited closure did not amount to an alternative to complete closure; f) the court should have considered positing a court officer at the door to screen those who wished to enter the courtroom; and g) the court did not make adequate record findings to support its decision (see Defendant’s Brief: 19-33). However, defendant raised none of those claims at the Hinton hearing; rather, counsel remarked only that the undercover officers had displayed their shields to a court officer to avoid having to go through the courthouse metal detector, and thus had not taken actions to “evade being seen by the public in the courthouse” (A32-33). Beyond that, the defense simply opposed the limited closure. Counsel did not specify any of the legal principles on which defendant now -13- relies, nor did he refer to the test set forth by Waller v. Georgia, 467 U.S. 39 (1984), which he relies upon now. Thus, defendant did not preserve any of the specific complaints noted above. Of course, “the jurisdiction of the Court of Appeals in criminal cases is limited to considering questions of law.” People v. Robinson, 36 N.Y.2d 224, 228 (1975). A “question of law” arises in a criminal proceeding “when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction” such that “the court had an opportunity of effectively changing the same” -- i.e., when the question was preserved. People v. Michael, 48 N.Y.2d 1, 5 (1979), quoting CPL 470.05(2) (internal quotation marks omitted). In other words, the doctrine of preservation “precludes appellate review, as a matter of law, of any ruling made by the court of original instance unless a protest was made to the ruling . . . at the time the error was committed.” People v. Udzinski, 146 A.D.2d 245, 248 (2d Dep’t 1989). The preservation doctrine serves the important function of “encourag[ing] all parties to be vigilant in the protection of their substantive and procedural rights throughout the course of a litigation.” Udzinski, 146 A.D.2d at 248. In that respect, the preservation doctrine seeks to decrease the prospect of trial error by forcing attorneys to “carefully watch for errors during trial.” Id. Accordingly, the preservation requirement “should not be viewed as a pretext by which appellate courts may overlook those errors which are inevitable at any trial, but instead should be regarded as an indispensable means of avoiding such errors in the first instance.” -14- Id. at 249 (internal citation omitted). That notion lies at the very heart of the preservation doctrine -- before an appellate court can consider a question of law, the trial court must have had “the opportunity to remedy the problem and thereby avert reversible error” in the first place. People v. Luperon, 85 N.Y.2d 71, 78 (1995); see People v. De Jesus, 69 N.Y.2d 855, 857 (1987) (“the prosecutor’s failure to raise his present contentions left no opportunity for the Trial Judge to consider these matters,” and “in the absence of proper objection there was no occasion for defendant to make a record”). To be sure, not all claims require preservation; indeed, alleged errors “that would affect the organization of the court or the mode of proceedings prescribed by law” are exempt from the preservation requirement. People v. Ahmed, 66 N.Y.2d 307, 310 (1985) (internal quotation marks omitted). Such errors include criminal trial before fewer than 12 jurors, trial before a court lacking jurisdiction to hear the case, the addition of a new count to an indictment after trial, and violation of the ban on double jeopardy. Id. Hinton claims do not fit within that category. In fact, just last year, this Court expressly held that “preservation is required” in Hinton cases -- that is, “a defendant must preserve the argument that he was deprived of the right to a public trial.” People v. Alvarez, 20 N.Y.3d 75, 78 (2012). In so ruling, this Court reiterated the longstanding principle, restated above, that “[b]ringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors.” Id. at 81. Thus, Hinton claims “must be preserved.” Id. -15- Beyond that, preservation rules for Hinton claims unquestionably follow the usual tenet that a specific appellate claim must be preserved either by a defense attorney’s specific timely objection, or by a trial court’s express consideration of the specific claim later raised on appeal. See CPL 470.05(2). This Court made that clear in People v. Nieves, 90 N.Y.2d 426 (1997). There, a trial judge closed the courtroom to not only the general public, but to defendant’s wife and children as well. Id. at 428- 29. Although defense counsel had voiced only a “general objection to closure,” defendant’s specific appellate complaint that his family should have been permitted to attend the closed portion of the trial was preserved because the court had “expressly considered allowing the children to remain present and specifically rejected that possibility.” Id. at 431 n.*. Similarly, in People v. Garcia, 95 N.Y.2d 946 (2000), defendant preserved his “partial closure argument” that his girlfriend and uncle should have been exempted from the closure order because he “unquestionably apprised the trial court of his wish to have his girlfriend and uncle attend his trial.” Id. at 947 (internal quotation marks omitted). Put simply, this Court has indicated that, in order for an appellate claim to be preserved, the hearing record must reflect that the court was aware of the specific issue concerning a closure. A plethora of Appellate Division law supports this proposition as well. See People v. Reed, 46 A.D.3d 285, 286 (1st Dep’t 2007) (defendant’s appellate argument that a “heightened or particularized showing was necessary in order to exclude his uncle” was unpreserved because, “[a]lthough defendant requested permission for his -16- uncle to attend, he did not make any of the arguments he now raises on appeal”); People v. Linares, 305 A.D.2d 259, 259 (1st Dep’t 2003) (Hinton claim unpreserved where “defendant’s arguments at the Hinton hearing were completely different from those he now raises on appeal”); People v. Williams, 287 A.D.2d 337, 337 (1st Dep’t 2001) (although “counsel was afforded ample opportunity to make arguments” at the Hinton hearing, he “never mentioned” the specific issue that defendant raised on appeal); People v. Chase, 265 A.D.2d 844, 844 (4th Dep’t 1999) (since defendant failed to object to the court’s sua sponte closure of the courtroom during the testimony on an infant witness, that claim was unpreserved for appellate review); People v. Latta, 222 A.D.2d 303, 303-04 (1st Dep’t 1995) (Hinton issue unpreserved where defendant “voiced only a general objection to the closure and [did] not [ ] challenge[ ] the People’s proof at the Hinton hearing that the officer’s safety would be jeopardized by testifying in open court”); People v. Wooten, 221 A.D.2d 674, 675 (2d Dep’t 1995) (defendant failed to preserve his specific argument that the courtroom should not have been closed to his father); People v. Baez, 162 A.D.2d 602, 602-03 (2d Dep’t 1990) (finding unpreserved defendant’s claim that the court closed the courtroom “without satisfactory explanation in the record”). The preservation rules in the Batson context are analogous. In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court set forth a protocol for evaluating whether a party violated the Equal Protection Clause by exercising a peremptory challenge to exclude a prospective juror for some improper reason, such as race. That -17- protocol involves a three-step procedure for determining whether the strike was motivated by an impermissible consideration. See Batson, 476 U.S. at 93-98; People v. Smocum, 99 N.Y.2d 418, 421-22 (2003). Under that framework, even when a party objects to a peremptory strike, thereby triggering the three-step protocol, that initial protest does not preserve any complaints about the trial court’s compliance with the protocol. Rather, the complaining party must register a specific objection regarding the step at which the trial court allegedly erred, and the nature of the alleged error. See People v. Richardson, 100 N.Y.2d 847, 853 (2003) (finding unpreserved defendant’s claim that trial court improperly revisited step-one finding of prima-facie discrimination); People v. Payne, 88 N.Y.2d 172, 182 n.1 (1996) (defendant’s “general objection” failed to preserve the complaint that People did not make out prima facie case at step one, because “counsel did not state the ground for the objection or argue that the People had failed to establish a prima facie case”); People v. Rodriguez, 93 A.D.3d 595, 595 (1st Dep’t 2012) (holding that defendant “failed to preserve any of his procedural objections to the court’s disposition of” his Batson application because defendant’s “substantive Batson arguments were insufficient to alert the trial court to defendant’s claim that it had failed to follow the Batson protocol”). For the same reason that a party’s general Batson challenge does not preserve a specific complaint with respect to the court’s process for resolving that challenge, a defendant’s general opposition to a courtroom closure is insufficient to preserve a specific claim about a deficiency with respect to the People’s showing or the hearing -18- court’s failure to raise on the record, and then reject as unworkable, un-asked-for alternatives to closure. See People v. Manning, 78 A.D.3d 585, 585-86 (1st Dep’t 2010), lv. denied 16 N.Y.3d 861 (2011) (a “specific complaint that the court failed to set forth adequate findings of fact to justify closure” is not preserved absent specific objection on that ground). Indeed, even when a court has a sua sponte responsibility to follow a certain legal procedure, such as considering alternatives to courtroom closure in the face of a motion to close the courtroom during a certain portion of a trial (see Presley v. Georgia, 130 S. Ct. 721, 724-25 [2010]; People v. Martin, 16 N.Y.3d 607, 612 [2011]), particular claims of error regarding that legal procedure are not exempt from the preservation rule. See also People v. Creech, 60 N.Y.2d 895, 896 (1983) (although the trial judge was mandated by statute to deliver a presumption- of-innocence charge, the defendant’s complaint that the judge had erred by failing to deliver that charge was unpreserved because the defendant did not raise that specific objection before the trial court). Nonetheless, relying on Presley, defendant suggests that certain Hinton claims -- those related to the trial court’s obligation to consider alternatives to closure -- do not require preservation (Defendant’s Brief: 30). Defendant misreads Presley. Indeed, the Supreme Court settled the matter in Waller, which Presley did not overrule. There, in remanding the case, the Supreme Court directed the state courts to 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 -19- law.” 467 U.S. at 42, n.2. Thus, the Supreme Court obviously intended for state preservation rules to apply in the courtroom-closure context. The Second Circuit recently reiterated this principle in Downs v. Lape, 657 F.3d 97 (2d Cir. 2011), cert denied Downs v. Bellnier, 132 S. Ct. 2439 (2012), decided after Presley. There, the Court rejected the defendant’s contention that, “because the trial court was independently required to justify and consider alternatives to the courtroom closure,” “the contemporaneous objection rule cannot be used to bar review of his Sixth Amendment claim.” Id. at 108. The Court noted 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 criminal defendant’s] favor.” Id.5 Put simply, even if a court has a legal duty to take a given action or apply a particular test, a timely and specific protest by a party -- or an express ruling by the court on the specific point ultimately raised on appeal -- is a necessary prerequisite to the existence of a question of law. A court’s sua sponte 5 Unlike the habeas petitioner in Downs, defendant here did register a general objection to the closure, though he did not raise the specific claims he advances now. The Second Circuit thus expressed no opinion on defendant’s precise circumstance, noting simply that “both Presley and Waller involved a trial court’s response to a registered objection,” and that “neither decision requires courts to justify or consider alternatives to closure when, as the Appellate Division reasonably found here, no objection is made.” 657 F.3d at 108. Rather, the Downs court held more generally that a public trial claim is subject to ordinary state contemporaneous-objection rules, which, in New York, require a specific contemporaneous objection. -20- obligation to follow the law does nothing to relieve a defendant of his burden to make a timely objection if he believes that the court has shirked its obligation. Here, by failing to alert the hearing court to the claims he now advances, defendant deprived the prosecutor of the “occasion . . . to make a record,” and the hearing court of the “opportunity . . . to consider these matters” at a time when they could have been easily addressed. De Jesus, 69 N.Y.2d at 857. For instance, had defendant argued to Justice Bartley that the officers’ testimony regarding the “vicinity” of defendant’s arrest was too general, or that “when the officers planned to return to this large area” was too nonspecific (see Defendant’s Brief: 20-24), the court could have questioned the People on that score or recalled the undercover officers for additional testimony. Had defendant argued that the officers did not reasonably fear encountering lost subjects or defendants from open cases (Defendant’s Brief: 25-29), the People or the court could have sought elaboration from the officers on that score. Had defendant wanted the court to consider, on the record, additional alternatives to partial closure (see Defendant’s Brief: 30-32), asking for such express consideration at the hearing, even without suggesting any particular alternative, would have put the issue to rest. And, had defendant desired a more detailed closure order (see Defendant’s Brief: 33-34), seeking it immediately following the hearing would have gotten him what he wanted. But, by doing none of those things, defendant squandered the best opportunity he had to correct what he now calls reversible error. Because he passed on his chance to have these alleged errors addressed at a time when -21- they could have been easily corrected, he cannot advance them as questions of law before this Court. CPL 470.05(2); Luperon, 85 N.Y.2d at 78; Robinson, 36 N.Y.2d at 228. Interestingly, defendant does not discuss preservation with respect to his present claims. Indeed, he never alleges that these claims are preserved, nor does he point to any portion of the record supporting such a proposition. Of course, that is not surprising, as none exists. Because these claims are unpreserved, and thus do not present questions of law for this Court’s review, they should be rejected out of hand. C. Defendant’s Hinton claims are substantively meritless. 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). 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). Accordingly, trial courts “unquestionably have discretionary authority to exclude the public.” 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 -22- informant’s testimony was a “provident exercise of discretion”) (internal quotation marks 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, 467 U.S. at 48; see People v. Kin Kan, 78 N.Y.2d 54, 58-59 (1991) (adopting the Waller analysis). Administering these standards requires a “delicate balancing” of competing interests. Kin Kan, 78 N.Y.2d at 58. This Court has repeatedly applied these precepts in the specific context presented by this case: a courtroom closure designed to protect the identity of an undercover police officer who, while hiding his true identity, had interacted with the defendant as part of a buy-and-bust operation. Indeed, People v. Hinton, 31 N.Y.2d 71 (1972), established that the State’s interest in protecting an officer’s safety may be sufficient to justify closure. See also Ramos, 90 N.Y.2d at 499 (protecting undercover officers’ continued “effectiveness” by concealing their identities also may constitute an overriding interest). When such a situation arises, the trial court must hold a hearing, at which the undercover officer testifies subject to cross-examination, to determine whether a factual showing supports any restriction on public access. See Martinez, 82 N.Y.2d at 442, citing Jones, 47 N.Y.2d at 409. -23- In this case, defendant contends that the People failed to demonstrate an overriding interest in closing the courtroom to the general public during the testimony of the undercover officers. Additionally, he complains that Justice Bartley failed to consider any alternatives to complete closure of the courtroom during that testimony. Finally, he claims that the judge did not make adequate record findings to support his decision. All of these claims are meritless. 1. The evidence at the Hinton hearing established an overriding interest that warranted limited closure of the courtroom during the undercover officers’ testimony. As noted, 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 Ramos, 90 N.Y.2d at 498; 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 39, 39 (2d Cir. 1996). 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. 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 or during the course of his -24- undercover work; whether the officer previously had been threatened in connection with his cover being blown; and whether the officer takes other precautions to protect his identity. See, e.g., People v. Jones, 96 N.Y.2d 213, 215 (2001); Ramos, 90 N.Y.2d at 498; Martinez, 82 N.Y.2d at 443. Here, the hearing testimony of UC 206 and UC 14 sufficiently established an overriding interest so as to justify the partial closure that Justice Bartley ordered. To begin, both officers testified that they worked “exclusively” as undercover officers for the Manhattan North Narcotics division of the NYPD (UC 206: A21-22; UC 14: A28). More narrowly, UC 206 had worked undercover specifically “in the area” of defendant’s sale as recently as two weeks before the hearing, UC 14 had participated in approximately 50 undercover operations in the same “vicinity” since defendant’s arrest, and both officers expected to return there for future investigations (UC 206: A23-24; UC 14: A29-30). Thus, the officers had an obvious interest keeping their identities secret from subjects who frequent that vicinity. Moreover, the probability that subjects whom the undercover officers had encountered on the streets (or could in the future) might be in or around the courthouse was high. Indeed, each officer testified that he had pending cases in which he had performed undercover duties in the vicinity of the instant sale (UC 206: H3; UC 14: H9-10). Worse still, both officers had “lost subjects” from cases in that vicinity, and a number of apprehended defendants from open cases in the same area had been subsequently released, leaving them at liberty between their court -25- appearances (UC 206: H3-4; UC 14: H9-10).6 If the courtroom were left open during these officers’ testimony, one of those lost or released subjects could well show up in court for an appearance on his own case and recognize one of the officers as the person to whom he had sold drugs right before being chased or arrested by the police. Plainly, that would present a very real threat to the officer’s safety. That such threats exist is far from hypothetical. Indeed, each officer testified that he previously had been threatened and attacked in connection with his undercover work: drug dealers had struck UC 206 in the head and thrown objects at him, and UC 14 had been threatened with a gun and shot at (UC 206: A25; UC 14: A31). That these undercover officers could be recognized and, as a result, fall victim to violence, plainly constituted a substantial risk. Accordingly, each undercover officer took precautions to protect his identity when coming to court. For instance, each officer wore civilian clothes, eschewed the company of uniformed officers, refrained from traveling in marked police cars, and revealed his shield only to a security officer in order to gain entry to the courthouse (UC 206: A24-28; UC 14: A30-32). When UC 206 testified in the grand jury, he identified himself only by his shield number (UC 206: A25). And, when defendant came to testify in the grand jury, UC 206 stayed in a separate room that was not open 6 A “lost subject” is a person who sold drugs to an undercover officer, but subsequently evaded arrest (UC 206: A23). -26- to the public (UC 206: A25). In other words, there was a solid basis in the record for each undercover officer’s assertion that, were he to testify in open court, his safety and that of his fellow officers would be jeopardized (UC 206: A21-25; UC 14: A31). As the Appellate Division correctly concluded, based on that evidence, Justice Bartley properly found that there was an overriding interest justifying closure of the courtroom to the general public during the testimony of each officer (see A34). Indeed, as the Appellate Division succinctly summarized, the People’s showing included evidence that “the officers expected to return to the vicinity of defendant’s arrest for further undercover operations, that unapprehended subjects of investigations remained at large, that the officers had been threatened in other undercover investigations, and that the officers took precautions to conceal their identity.” Johnson, 88 A.D.3d at 503. That determination was entirely consistent with the relevant precedent of this Court. For instance, in Jones, 96 N.Y.2d at 215, this 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 a Manhattan post, and the 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 facts that the officer had ongoing cases before Brooklyn grand juries, had -27- about 10 “lost subjects” in Brooklyn cases, had “received threats in the past,” and always took security precautions when coming to court. Id. at 215. Similarly, in Ayala, 90 N.Y.2d at 496, this 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, although he had not been threatened with respect to the defendant’s case, he had been threatened in front of the courthouse by a defendant in an unrelated case. Id. at 496. Here, both officers’ regular assignments in the vicinity of defendant’s arrest, their pending cases from the area of the instant sale, their lost subjects and at-large defendants from that area, and the particular acts of violence they had experienced as undercover officers fully supported closing the courtroom to the general public while they testified. Nonetheless, and despite his lack of protest on any of these grounds at the hearing, defendant now claims that the People failed to establish “a specific link” between the need for closure and the officers’ safety because: the officers’ testimony regarding the geographic area in which they worked undercover was too general; the officers did not testify with specificity as to when they planned to return to the area of the charged sale; the officers did not testify that they had ever been threatened by anyone involved in this case; and unspecified lost subjects did not pose a significant threat to the officers’ safety (see Defendant’s Brief: 19-28). All of these unpreserved claims are meritless. Defendant also raises the sole claim he preserved below -- that -28- the precautions taken by the undercover officers were insufficient to support a closure order (Defendant’s Brief: 28-29). That claim cannot succeed. Defendant’s first unpreserved claim is that the evidence at the Hinton hearing did not establish that the undercover officers had returned since defendant’s arrest, or would be returning in the future, to the “specific area” of defendant’s arrest; rather, according to defendant, the evidence established only that the officers would be returning to the upper half of Manhattan (Defendant’s Brief: 20). But the record does not support defendant’s claim. In fact, UC 206 had 10 open cases, “almost all” of which arose from undercover duties he had performed in the vicinity of Park Avenue between East 128th Street and East 132nd Street, where the events of the instant case occurred. UC 206’s testimony in this regard was plain and unequivocal: Q. Do you currently have any open cases, any cases in which you have testified in the grand jury where there is an open indictment? A. Yes. Q. What areas are those cases in Manhattan? A. They are within areas of Harlem, Washington Heights, Morningside Heights. Q. Approximately how many open cases do you currently have? A. I would say approximately 10. Q. Approximately, how many of those open cases, if any, are within the vicinity where this case took place? A. Almost all of them. -29- (UC 206: A22 [emphasis added]). UC 206 further testified that, two weeks before the hearing, he had tried to effect a “buy and bust” purchase “in the area where this incident occurred,” and that he intended to return to that area for future investigations (UC 206: A23-24). UC 14 similarly testified that he had open cases “in the area of this sale,” had participated in approximately 50 undercover operations in that vicinity in the preceding 10 months, and planned to go back to “that area” in the future (UC 14: A29-30). Acknowledging that testimony, defendant argues (as he did not at the hearing) that “the prosecution offered no evidence that the ‘vicinity’ of [defendant’s] arrest was anything smaller than the heavily-populated, 12-square mile area that the NYPD calls Manhattan North” (Defendant’s Brief: 20). But that simply is not a fair understanding of the phrase, “in the vicinity.” The Oxford English Dictionary defines that phrase as, “in the neighborhood (of)” or “near or close (to).”7 That is plainly how the prosecutor meant the question, and how the judge and defense counsel interpreted it; at least, there is nothing in the record suggesting that anyone interpreted it differently. Indeed, preservation aside, defense counsel’s failure to argue this point at the hearing suggests his understanding that UC 206 had continued working “near or close to” the 7 Oxford English Dictionary, available at http://www.oed.com/view/Entry/ 223177?redirectedFrom=vicinity#eid (last visited Feb. 6, 2013). -30- area where he bought drugs from defendant. Cf. Martinez, 82 N.Y.2d at 439-40 (“the trial court elicited that the officer’s area of operations was ‘the whole Bronx’”). Next, defendant complains that the officers’ testimony did not establish when specifically they planned to return to the vicinity of defendant’s sale for future investigations, and argues that the courtroom should not have been closed “without a showing that this return was imminent” (Defendant’s Brief: 22). Citing no authority, defendant claims that “[t]his omission is itself fatal” (id.). The lack of citation is not surprising, as this Court has never held that the absence of any particular single factor in assessing a claim under the first prong of Waller is “fatal.” Rather, this Court has made clear that the prong-one analysis involves a “delicate balancing” of competing interests, not a strict test under which any single factor is dispositive. Kin Kan, 78 N.Y.2d at 58; see Ramos, 90 N.Y.2d at 498 (listing “examples[s]” of what might establish the requisite “nexus”). Indeed, in Jones, 96 N.Y.2d 213, this Court upheld a closure where the undercover officer had no plans to return to the vicinity of the crime. Id. at 220 (“the undercover testified that she no longer worked in Brooklyn, [but] she still had occasion to return there to testify before the Grand Jury”). And, the Appellate Division has consistently upheld closure orders after undercover officers testified generally that they planned to return to the relevant areas for future investigations. See, e.g., People v. Aponte, 238 A.D.2d 169, 169 (1st Dep’t 1997) (officer “expected to return to the area in connection with her regular undercover -31- narcotics assignment”); People v. Diaz, 237 A.D.2d 457, 457 (2d Dep’t 1997) (officer would return “in the near future”).8 Defendant also ignores the impact of the frequency with which UC 206 and UC 14 had worked in the vicinity of the instant sale on the issue of the immediacy of their return. In the ten months between defendant’s arrest and the hearing, UC 14 had revisited the vicinity of the instant crime about 50 times -- more than once per week, on average (UC 14: A29-30). Additionally, UC 206 had worked undercover in that area just two weeks before the hearing (UC 206: A23-24). Those factors strongly suggested that when the officers said that they expected to return in the future, they meant soon and regularly. Again, preservation aside, this obvious meaning explains why defense counsel did not raise this argument below. Thus, this Court should not give it any credence now. 8 Defendant seeks to turn this wall of authority, which undermines his legal position, to his factual advantage by contending that the very abundance of cases rejecting his various arguments supports his claim that closure is granted too frequently (see Defendant’s Brief: 26-28, n.10-12). But defendant’s claim that the First and Second Departments affirm closure orders with “frequency” does not even fairly imply, much less prove, that courtrooms at the trial level are regularly closed without constitutionally adequate basis. The total number of Appellate Division cases dealing with courtroom closure plainly is too miniscule when compared to the total number of statewide indictments on undercover buy-and-bust cases to permit any inference about the vast number of cases not decided by the Appellate Division -- those in which closure motions are denied by the hearing court, or where no motion was made in the first place. Indeed, because of the clear standards set forth by Ramos and its progeny, one would expect a high rate of appellate affirmance of closure decisions. The People would be foolish to waste time making a motion for courtroom closure in the first place unless they are confident that they can make the required showing. -32- Next, defendant argues that the officers’ lost subjects were of no moment, and that the fact that the officers had been threatened in other cases was irrelevant because “neither indicated that these threats were from anyone associated with [defendant’s] case” (Defendant’s Brief: 25-26). To be sure, 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.” Martinez, 82 N.Y.2d at 443. However, evidence that an undercover officer has been threatened in the past can serve to substantiate his present concern for his physical safety. See Jones, 96 N.Y.2d at 215; Ramos, 90 N.Y.2d at 495-96. 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 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-specific threat or threats in the area of the crime. See Jones, 96 N.Y.2d at 215 (undercover officer “had received threats in the past”); Ramos, 90 N.Y.2d at 495 (undercover officer had been “threatened at gunpoint when a former subject discovered that he was a police officer”); Ayala, 90 N.Y.2d at 496 (undercover officer “had previously been threatened in front of the courthouse by a defendant in an unrelated case”). -33- Finally, defendant turns to his sole preserved claim: that the lower courts’ “reliance on the precautions taken by [the undercover officers] to conceal their identit[ies] is erroneous” (Defendant’s Brief: 28) (internal quotation marks omitted). Here, defendant argues -- for once, as he did at the hearing -- that the fact that the undercover officers displayed their shields to court officers in order to gain entry to the courthouse “indicated a somewhat reduced concern for their safety” (id. at 28-29). That argument makes no more sense now than it did at the hearing. Undoubtedly, an undercover officer who enters a courthouse wants to appear as inconspicuous as possible. Of course, though, had the officers proceeded through the courthouse metal detectors like other members of the public, their shields would have triggered the sensors, and they would have had to remove and surrender the shields -- in addition to any service weapons they may have been carrying -- in front of countless onlookers. That would have blown each officer’s cover immediately. Instead, these officers chose to flash their shields at court officers who were not manning the metal detectors, thus gaining access to the building less conspicuously. That course of conduct makes eminent sense and is consistent with the officers’ wish to remain unrecognized by lost subjects and at-large defendants who may have been waiting to pass through the metal detectors and enter the courthouse for unrelated matters. At bottom, it is important to remember why a defendant’s right to a public trial is embedded in our Constitution, and why courts must take care before ordering courtroom closures: to “prevent[ ] the abuses of secret tribunals as exemplified by the -34- Inquisition, Star Chamber and lettre de cachet.” Hinton, 31 N.Y.2d at 73; see Matter of Oliver, 333 U.S. at 270 (“the guarantee [to a public trial] has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution”); Estes v. State of Tex., 381 U.S. 532, 588 (1965) (Harlan, J., concurring) (the public-trial guarantee guards against “secret proceedings”). In a case such as this, where most -- but not all -- of the public was excluded from hearing the testimony of two witnesses, and the transcripts of that testimony -- which were never sealed -- remain available to anyone who cares to review them, there is no danger that defendant was subject to the grave injustices that were propagated in 13th-14th Century Europe. On the other hand, where the two undercover officers had a combined 20-25 open cases and 28-32 lost subjects from the vicinity of the instant sale, the officers -- who each previously had had their lives threatened by suspects who had recognized them as, or suspected them to be, undercover officers -- faced mortal danger in the foreseeable event that a member of the public recognized them on the witness stand. That realistic concern plainly outweighs the minimally- restrictive partial closure that Justice Bartley ordered. That is reflected in many of this Court’s prior cases, including Jones, 96 N.Y.2d at 215, and Ayala, 90 N.Y.2d at 496. To hold otherwise would needlessly and senselessly augment the mortal danger faced by police officers who already risk their lives on a daily basis to serve the public good. All told, the record made out an overriding interest in closing the courtroom during the undercover officers’ testimony to protect their physical safety and -35- continued effectiveness on the streets. Defendant’s unpreserved claims to the contrary are meritless. 2. The hearing court considered alternatives to complete closure -- and, in fact, settled on partial closure -- by accepting the prosecutor’s assessment that there was “no lesser option” than to close the courtroom to the general public (excepting defendant’s family and legal advisors) during only the portion of the trial involving the undercover officers’ testimony. As noted above, the Appellate Division observed that, “[i]nstead of ordering a complete closure of the courtroom,” Justice Bartley limited the closure order to encompass only “the testimony of these officers,” and the judge “permitted defendant’s family to attend.” Johnson, 88 A.D.3d at 503. Although he never alerted Justice Bartley to these concerns, defendant now complains that the judge “did not consider any alternatives to complete closure” and that the court’s exception for defendant’s family constituted not “an alternative to closure, but rather a limitation on the scope of closure” (Defendant’s Brief: 30-31). He also suggests -- as he failed to do at the hearing -- that the court should have posted a court officer at the courtroom door to “screen out potentially dangerous people” (id. at 31). These unpreserved claims are meritless. To be sure, “before excluding the public,” a trial court must “consider whether something short of complete closure” will suffice to protect the overriding interest identified. Ramos, 90 N.Y.2d at 502-03; see Presley, 130 S. Ct. at 724. Whether a restriction of the public trial right is “narrow or broad depends on several factors, -36- 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, 421 F.3d at 89-90, citing Bowden v. Keane, 237 F.3d 125, 129-30 (2d Cir. 2001). At bottom, though, the key is that the limitation must be crafted as narrowly as possible so the restriction on public access is no more onerous than necessary. See Press-Enterprise Co v. Super. Ct. of Cal., 478 U.S. 1, 9- 10 (1986) [“Press-Enterprise II”]; Waller, 467 U.S. at 45. Thus, the second and third factors in the oft-quoted passage from Waller set forth above are interrelated: trial courts are required to consider alternatives to complete closure (the third requirement) in order to ensure that restrictions on access to court proceedings are no broader than necessary (the second requirement). Notably, the consideration of “alternative” procedures begs the question of to what, exactly, the procedures must represent an alternative. Both the United States Supreme Court and this Court have answered that question: a trial court’s obligation is to consider alternatives to complete closure of an entire proceeding to all spectators. In Waller, a judge closed the courtroom entirely during a seven-day suppression hearing, 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 -37- (emphasis added); see Press-Enterprise II, 478 U.S. at 13-15; Gannett Co. v. DePasquale, 443 U.S. 368, 393 (1979).9 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). Contrary to defendant’s present unpreserved suggestion (see Defendant’s Brief: 31), 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. For example, in Ramos, this Court characterized the defendant’s suggestion that family members be exempted from closure as an “alternative[ ] to closing the courtroom.” 90 N.Y.2d at 504. Similarly, in Pearson, this Court discussed the possibility that defendant “might have been asked to name family members or others who could have been admitted” as one “reasonable alternative[ ] to closing the 9 The Press-Enterprise cases 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, 130 S. Ct. at 724, it is settled that the analysis for evaluating a courtroom closure is the same under both. Waller, 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] [“Press-Enterprise I”] 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 II, 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). -38- proceeding.” 82 N.Y.2d at 444. Federal Courts and the Appellate Division have reached similar conclusions. See, e.g., Waller, 467 U.S. at 48-49 (suggesting as an alternative to complete closure “closing only those parts of the hearing that jeopardized the interests advanced”); Sevencan v. Herbert, 342 F.3d 69, 76 (2d Cir. 2002) (“[T]he trial court considered reasonable alternatives proposed by the defense,” including “the admission of other lawyers and legal interns”); People v. O’Conner, 90 A.D.3d 431, 431-32 (1st Dep’t 2011) (characterizing admission of family members as an “alternative to closure”); People v. Dean, 88 A.D.3d 578, 579 (1st Dep’t 2011) (that the court “permitted defendant’s family members and other persons specified by defendant to attend . . . satisfied the court’s duty to consider reasonable alternatives to full closure”); People v. Mickens, 82 A.D.3d 430, 430 (1st Dep’t 2011) (“the court considered and adopted a reasonable alternative to full closure” by “allow[ing] family members to attend”). Defendant cites three cases -- People v. Nazario, 4 N.Y.3d 70 (2005), People v. Gutierez, 86 N.Y.2d 817 (1995), and People v. Kin Kan, 78 N.Y.2d 54 (1991) -- for the proposition that a court’s decision to permit a defendant’s family members to attend proceedings, while excluding the general public, constitutes “a limitation on the scope of closure,” not “an alternative to closure” (Defendant’s Brief: 31). Those cases do not support that proposition. Indeed, none of those cases draw a distinction between “a limitation on the scope of closure” and “an alternative to closure.” Rather, all express only that a closure order that does not carve out an exception for -39- close family members will be “overbroad” (Nazario, 4 N.Y.3d at 72-73), or “broader than constitutionally tolerable” (Gutierez, 86 N.Y.2d at 818; Kin Kan, 78 N.Y.2d at 58-59), in the absence of a specific showing that the family members should be excluded. None discuss the difference, if any exists, between a limitation on the scope of a closure and an alternative to closure. That is not surprising, given that, intuitively, “a limitation on the scope of closure” surely constitutes something different than -- i.e., an “alternative” to -- complete closure. Thus, by limiting the duration of the closure and exempting defendant’s family from the partial-closure order, the court satisfied its obligation to consider reasonable alternatives to complete closure. Nothing more was required. The Second Circuit has affirmed that principle. Sitting en banc to review closures in three separate buy-and-bust cases that had been limited to the testimony of undercover officers, the Court found “nothing in the First Amendment cases or in Waller to indicate that once a trial judge has determined that limited closure is warranted as an alternative to complete closure, the judge must sua sponte consider further alternatives to the alternative deemed appropriate.” Ayala, 131 F.3d at 71. That rule makes perfect sense, for a trial judge hardly can be expected to “explicitly” consider every possible alternative by pontificating aloud on the record, listing every alternative he can think of, and dismissing all of them in turn. As this Court remarked in Ramos, “[a]ny other rule would place an impractical -- if not impossible -- burden on trial courts, particularly in buy-and-bust cases.” Id. at 505. The Court explained: -40- Even if the court were to hold a separate hearing on the issue, or itself consider and reject some alternatives to closing the proceeding, a defendant on appeal could likely always conjure up yet another method of concealing the witness’s identity that the court overlooked. Under these circumstances, placing the onus wholly on trial courts would provide an incentive for defendants to remain silent. Id.; see also People v. Frost, 100 N.Y.2d 129, 137-38 (2003); see generally Carson, 421 F.3d at 90. That is precisely what happened here. The prosecutor suggested that the only appropriate alternative to complete closure was to limit the duration of the closure to cover only the undercover officers’ testimony, and to allow defendant’s family and legal personnel to attend that otherwise-closed portion of the trial (A33). The court agreed (A34), and defendant did not raise an objection, voice additional suggestions for different alternatives, or ask the court to place on the record additional suggestions that it had considered and rejected. Nonetheless, in the Appellate Division, defendant “conjure[d] up yet [ ]other method[s]” of closure (Ramos, 90 N.Y.2d at 505), including that the court could have implemented a “screening procedure,” or had the undercover officers wear “some kind of disguise” while testifying (Defendant’s Appellate Division Brief: 29-30). Unsurprisingly, the Appellate Division found those claims unpreserved, and meritless in any event. Johnson, 88 A.D.3d at 503. Before this Court, defendant re-raises his suggestion that Justice Bartley could have “post[ed] a court officer at the courtroom door with instructions to interview -41- and screen out potentially dangerous people” (Defendant’s Brief: 31-32). That claim is as unpreserved and meritless now as it was in the Appellate Division. The fact that that procedure was implemented in cases that defendant cites (see id.) does not mean that it would have been effective here. For instance, in Jones, the undercover officer, who was set to testify in Brooklyn, had been transferred to a Manhattan precinct and would no longer be returning to the Brooklyn streets. 96 N.Y.2d at 215. Similarly, in Sanabria, the undercover officer did not have pending cases or lost subjects, so the court found it unlikely that anyone posing a threat to the officer would be in the courtroom. See People v. Sanabria, 301 A.D.2d 307 (1st Dep’t 2002). And, Alvarez is distinguishable because there the closure order excluded the defendant’s girlfriend, who was treated as a family member for courtroom closure purposes. Therefore, the Appellate Division noted that “even more careful consideration of the Waller factors” was required. People v. Alvarez, 51 A.D.3d 167 (1st Dep’t 2008). Thus, defendant’s belated and unpreserved suggestion that a screening procedure should have been implemented should be rejected. At bottom, Justice Bartley satisfied his obligations under Waller’s third prong by closing the courtroom only during the undercover officers’ testimony, permitting defendant’s family and legal personnel to attend that otherwise-closed portion of the trial, and implicitly accepting the prosecutor’s assertion that “no lesser option” existed. Defendant’s unpreserved contentions to the contrary are meritless. -42- 3. The hearing court made adequate record findings to support the partial closure order. Finally, defendant complains that, although the court “articulated two interests” that often are held to “override the constitutional presumption in favor of an open courtroom,” -- i.e. that both officers continued to engage in undercover activity in the vicinity of defendant’s arrest, and that both officers were concerned for their safety -- the court “neglected to articulate how the officers’ safety or effectiveness would be jeopardized if they were required to testify publicly at [defendant’s] trial” (Defendant’s Brief: 33) (internal quotation marks omitted). As discussed, this claim, too, is unpreserved; indeed, after the judge announced his findings and rendered his decision, defense counsel did not request that the court make more detailed findings, let alone seek a more expansive ruling on the particular issue he raises now (see A34). In any event, defendant’s claim is meritless. To be sure, when a judge orders closure of a courtroom, he “must make findings adequate to support the closure.” Waller, 467 U.S. at 48; see Martin, 16 N.Y.3d at 611-12. That standard permits hearing courts broad leeway and does not require any particular findings, so long as they are “adequate” on the whole. And, far from restricting itself to the text of the court’s ruling, this Court has considered findings that “could [ ] be implied from the court’s granting [of] the People’s motion” based on “the entirety of the undercover witness’s testimony.” Ramos, 90 N.Y.2d at 504. -43- Here, the court’s findings were perfectly adequate. In the first place, the court expressly credited the officers’ testimony (A34). The court further found that UC 206 and UC 14 both were “actively engaged” as undercover officers “in the vicinity” of defendant’s arrest (A34). Additionally, the court found that both officers were concerned for their safety “in this particular area” (A34). The plain import of those express findings is clear: if the officers were forced to testify in open court, their safety would be jeopardized by the realistic probability of lost subjects, at-large defendants, or individuals who frequent the vicinity of defendant’s arrest seeing the officers testify, learning their identities as undercover officers, and seeking violent retaliation on the street. That is obviously “how the officers’ safety or effectiveness would be jeopardized” (see Defendant’s Brief: 33); it can be “implied from the court’s granting [of] the People’s motion,” as well as from the “entirety of the undercover witness[es’] testimony.” Ramos, 90 N.Y.2d at 504. All told, defendant strains the bounds of credulity by arguing that the court committed reversible error by not spelling out what was already obvious to everyone in the courtroom -- defense counsel included, as evidenced by his lack of request for elaboration. * * * In sum, at the close of the Hinton hearing, defendant’s sole argument against the limited closure that the judge ultimately ordered was that the undercover officers did not truly fear for their safety, as evidenced by the fact that they displayed their shields in order to gain entry to the courthouse. Because defendant did not ask -44- Justice Bartley to consider any of the other arguments that he raises now, all of those claims are unpreserved. They must be rejected on that basis alone, as his unpreserved claims do not present questions of law for this Court’s review. And, even if that were not the case, all of his claims are meritless. POINT II THE JUDGE PROPERLY DECLINED TO CHARGE THE JURY THAT, IN ASSESSING THE AGENCY DEFENSE, IT COULD CONSIDER WHETHER DEFENDANT HAD PREVIOUSLY SOLD DRUGS, BECAUSE THE JURY HAD HEARD NO EVIDENCE ON THAT SCORE, AND PERMITTING IT TO CONSIDER A FACTOR NOT IN EVIDENCE WOULD HAVE AMOUNTED TO AN INSTRUCTION COUNTENANCING SPECULATION (Answering Defendant’s Brief, Point II). At trial, the jury heard no evidence regarding whether, in the past, defendant had or had not engaged in drug sales, or possessed drugs with the intent to sell them. Accordingly, when the judge delivered the standard CJI agency charge to the jury, he omitted optional language regarding how a jury should evaluate, in relation to the agency defense, a defendant’s history of selling drugs/possessing them with intent to sell. Defendant now labels that omission reversible error. Additionally, as defendant sees it, because defense counsel mentioned this factor in his summation, the court’s omission “signaled to the jury that the factor was not worthy of consideration” and -45- “undermined the credibility of defense counsel” (Defendant’s Brief: 39). Defendant’s claims are meritless. A. At the charge conference, defense counsel requested an agency charge, which the judge agreed to deliver (A285, A301). Specifically, counsel noted that the standard agency charge contained “four to six” “factors” that favored agency (A285). The judge noted that his charge would be delivered “according to the CJI” (A302). Counsel did not request a charge on any particular factor. During his summation, defense counsel discussed the agency defense at length (see A307-24). Toward the end, counsel briefly mentioned “[o]ne other factor that goes in favor of the agency defense” -- that “there was no evidence presented at the trial that this defendant was ever convicted for the sale of a controlled substance” (A321). The People objected, noting that defendant had several convictions for drug possession, and that the court had issued a pretrial Sandoval ruling forbidding the People from referencing those convictions (A321-23). The judge overruled the objection (A324), and counsel repeated to the jury that “there’s been no evidence presented at trial that the defendant has a prior conviction for [ ] the sale of a controlled substance” or “possession . . . with the intent to sell” (A324). The trial court’s agency charge substantially conformed to the pattern charge. The court read the definition of an agent, explained that in considering the defense the jury “must consider all the evidence relating to the circumstances surrounding the -46- transaction,” gave examples of factors that supported a finding of agency, and gave examples of factors that did not support such a finding (A366-68 [emphasis added]; see CJI 2d, Agency, available at http://www.nycourts.gov/cji/1- General/Defenses/CJI2d.Agency.pdf [“CJI Charge”]). With respect to the factors that supported the agency defense, the judge instructed the jury that it could consider: One, that prior to the transaction, the defendant and the undercover officer were known to each other and had a relationship. Two, that the undercover officer and not the defendant suggested the transaction. Three, that the defendant said nothing to promote the sale. Four, that the defendant did not receive any benefit for participation in the alleged sale for if the defendant received the benefit from the undercover officer, it was incidental, for example in the nature of a share of the drug or tip as a token of appreciation and not in consideration for selling. Five, that prior to the transaction, the cocaine in question was controlled exclusively by a person other than the defendant. (A367). The CJI charge contains a sixth example, not read to the jury here: [6. That the defendant had not at any other time engaged in the sale of a controlled substance [marihuana] (or, the possession of a controlled substance [marihuana] with the intent to sell it).] (CJI Charge). In the CJI, as notated here, that instruction is enclosed in brackets. The brackets indicate that the Committee on Criminal Jury Instructions deemed this instruction appropriate only if supported by “the particular facts of the case,” and -47- thus directed that a given judge “may elect to charge the bracketed material.” See CJI 2d, Preface, available at http://www.nycourts.gov/cji/0-TitlePage/1-Preface.html (emphasis added). Following the charge, defense counsel objected to the omission of the bracketed language: [COUNSEL]: Your Honor, my one objection to the agency charge is that in the CJI Charge, there is the factor that deals with, and I quote, [quoting the omitted factor]. It is a factor that can be considered in favor of agency, and also if there were such evidence, that it could be considered against agency. THE COURT: I am aware of it. [COUNSEL]: That’s the basis for my objection THE COURT: Do the People wish to be heard? [PROSECUTOR]: Only to say that these were meant to be guidelines and it is not law required that you give the instructions that they are in the guidelines. Additionally, to give it now would unfortunately have a presumptive highlight in that particular factor, suggestive fact. THE COURT: I am of the view that matter in which the agency defense arose in this particular case. That particular guideline is inapplicable in this case, and I decline to charge it. You have an exception. (A373-74). -48- B. As an initial matter, defendant’s claim that the court’s ruling deprived him of his constitutional right to due process of law (Defendant’s Brief: 39) is unpreserved. As is evident from the record, while defendant objected generally to the exclusion of the omitted factor, he never claimed that the omission violated any of his constitutional rights. Because constitutional claims must be preserved via specific objections (see People v. Kello, 96 N.Y.2d 740, 744 [2001]), defendant’s newly-minted due process claim is unpreserved. In any event, defendant’s contention that he was entitled to the omitted charge is meritless. To be sure, the Penal Law broadly defines the word “sell” as “sell, exchange, give or dispose of to another, or to offer or agree to do the same” (Penal Law § 220.00[1]). Thus, while an independent street dealer who receives cash directly from a buyer is guilty of a “criminal sale” or possession with “intent to sell,” so too are, for example, a dealer who gives out free drug samples, and a “middleman” who delivers drugs from a seller to a buyer -- even one who receives no consideration. People v. Starling, 85 N.Y.2d 509, 509, 514-15 (1995). However, not every person who hands drugs to another is guilty of a sale crime. An “agent” -- defined as someone who “acts solely to accommodate the buyer” and is the buyer’s “alter ego” (People v. Feldman, 50 N.Y.2d 500, 503 [1980]) -- may escape criminal liability for a sale offense, even where the agent takes the buyer’s money and hands the buyer drugs in return. People v. Roche, 45 N.Y.2d 78, 83 (1978); see also People v. Watson, 20 -49- N.Y.3d 182, 185-86 (2012). Importantly, though, in order to succeed in this defense, the jury must find that the agent acted “because the buyer has asked him to do so, but not out of any independent desire or inclination to promote the transaction.” People v. Argibay, 45 N.Y.2d 45, 53-54 (1978). Here, the court granted defendant’s request for an agency charge and announced its intention to read the standard CJI charge (A302). As discussed, that charge sets forth a number of factors approved of by the Committee on Criminal Jury Instructions that a jury may consider when determining whether the defendant had acted as an agent of the buyer. Defendant now complains that the judge declined to charge a single factor that the CJI expressly made optional, to be given solely at the judge’s discretion: that the defendant had not at any other time engaged in the sale of a controlled substance or the possession of a controlled substance with the intent to sell (see CJI Charge). The judge declined to include that optional language, obviously because the jury had heard no evidence, either way, regarding whether defendant had ever been convicted of drug sale or possession with intent to sell. That decision is unassailable. “It is fundamental that the jury must decide the issues on the evidence.” People v. Ashwal, 39 N.Y.2d 105, 109 (1976); see Sheppard v. Maxwell, 384 U.S. 333, 351 (1966); People v. De Jesus, 42 N.Y.2d 519, 523 (1977). For that reason, it is patently impermissible for a jury to “speculate on matters not in evidence” when resolving questions of fact. People v. Arnold, 96 N.Y.2d 358, 364 (2001) (internal -50- quotation marks omitted); see People v. Williams, 10 A.D.3d 213, 220 (1st Dep’t 2004), aff’d 5 N.Y.3d 732 (2005); People v. Kinard, 215 A.D.2d 591, 591 (2d Dep’t 1995). Unquestionably, whether defendant had been involved with prior drug sales is a question of fact. But here, as noted, the jury did not hear any evidence regarding defendant’s criminal history. Nothing in the record indicated that he had ever sold drugs before, and nothing in the record indicated that he had not. There simply was no evidence on that subject. Accordingly, the jury had no basis to assess whether defendant had, or had not, “at any other time engaged in the sale of a controlled substance” or “the possession of a controlled substance with the intent to sell it” (CJI Charge). Realizing that, and apparently understanding that the CJI charge on this subject was meant to be delivered only in cases where the record reflects the defendant’s relevant criminal history, Justice Bartley appropriately found that language “inapplicable in this case” (A374). Defendant does not dispute this. Indeed, he does not -- because he cannot -- claim that the jury had heard evidence regarding defendant’s history, or lack thereof, of selling drugs. Instead, he observes that “the prosecution presented no evidence of [defendant’s] prior involvement with drug sales” (Defendant’s Brief: 38). That is certainly true. But, while the People were required to disprove the agency defense beyond a reasonable doubt, they were not required to present any particular proof on that score. When the People rested without presenting any evidence regarding -51- defendant’s criminal record, defendant was free to present such evidence himself in order to secure the charge at issue -- a charge requiring evidence, one way or the other, regarding whether he previously had engaged in drug-selling activity. Of course, defendant was not inclined to do that, as he expressly opposed the People’s application to introduce a prior drug possession conviction under which he had possessed 14 bags of cocaine (see A10, A323). Defendant cannot have his cake and eat it too. Defendant suggests that the optional sixth factor should have been charged because “the lack of such evidence [of prior drug sales] supports an agency defense” (Defendant’s Brief: 37). However, if that were true, then the sixth factor would have to be charged in every case: the charge would be relevant either because the jury had heard evidence related to the defendant’s prior dealings with drug sales, or because it had not. But if the drafters of the CJI had intended that result, the charge would not have been designated as optional. Of course, as noted, the CJI explicitly made the charge optional by placing it in brackets. Thus, defendant’s position is unsustainable. Additionally, defendant complains that the judge’s omission of the challenged factor undermined counsel’s credibility because counsel had argued that factor to the jury on summation (Defendant’s Brief: 39). First, it is noteworthy that counsel never secured any kind of assurance, before making this summation argument, that the judge would charge this particular factor. Rather, counsel made a general request for the agency charge, and the court indicated that it would use the CJI charge as a model -52- (A285, A301-02). Counsel did not request the optional sixth factor specifically, and the judge did not promise to charge it. Thus, if counsel was banking on the court’s charge paralleling his summation, he took a risk in doing so without first making a more thorough charge application. And, of course, even after the charge, counsel never argued that his credibility had been compromised by the judge’s decision to omit the contested language. Had counsel advanced that notion -- indeed, nothing more than a single additional sentence would have been necessary -- the court could have reflected upon it and considered potential remedial measures. The absence of such an objection suggests that this newly-minted claim was not, in fact, a concern below. Moreover, the fact that the court permitted counsel to argue an inapplicable factor on summation is a boon that cut for defendant, not against him. Indeed, it is one thing for the judge to permit a defense attorney to ask a jury to conclude that, because the prosecution had not presented evidence that defendant previously had been involved with drug sales, the reverse must be true; it is another thing entirely for a judge to instruct a jury to speculate that, because it had not heard evidence of a particular fact, it must conclude that the fact did not exist. Thus, the judge did not “signal to the jury that the factor [was] not worthy of consideration” (Defendant’s Brief: 39); rather, he signaled that counsel’s argument was just that: an argument, and not a legal instruction. -53- Furthermore, it is extremely unlikely that counsel’s credibility was “undermined” because he mentioned the optional sixth factor but the judge did not (see Defendant’s Brief: 39). Indeed, it is difficult to believe that any juror kept a mental checklist of factors laid out in the defense summation and corresponding instructions later delivered by the judge.10 And, even if some juror had done just that, she would have had no reason to fault defense counsel for including an additional argument for concluding that counsel had made the argument in bad faith. Indeed, it is not uncommon for an attorney to advance an argument that the court does not echo via a legal instruction in its charge. See, e.g., Williams, 5 N.Y.3d at 734 (“A defendant not necessarily entitled to a missing witness charge may nonetheless try to persuade the jury [in summation] to draw inferences from the People's failure to call an available witness with material, noncumulative information about the case”); People v. Gonzalez, 214 A.D.2d 308, 309 (1st Dep’t 1995) (holding that the trial court did not err in refusing to deliver an adverse inference charge, and noting that defense counsel had explored the contested issue in summation). Finally, even if that the law had required Justice Bartley to encourage the jury to speculate about facts not in evidence by delivering the challenged instruction, his failure to do so would have been harmless. See Roche, 45 N.Y.2d at 78; see also 10 Nor could a juror have kept a physical checklist, as there is no indication in the Court’s preliminary instructions that the jury was permitted to take notes (A35-50). -54- Kello, 96 N.Y.2d at 744 (“the proper standard of harmless error analysis here is that which we apply for nonconstitutional trial error, i.e., whether (1) proof of guilt was overwhelming; and (2) there was no significant probability that the jury would have acquitted had the proscribed evidence not been introduced”) (internal citation omitted). The salient facts are not in dispute. Defendant approached the undercover officer, a stranger, and asked him what he was looking for (UC 206: A 83-84, A88-90, A126, A137-39; UC 14: A151-52, A155-56, A185). The officer responded that he wanted crack, and defendant instructed the officer to follow him (UC 206: A84, A88- 90, A126, A137-38). Defendant led the officer to 1960 Park Avenue via an indirect route, stating the price was $20.00 and accepting $20.00 in payment from the undercover officer (UC 206: 6A84-86, A90-92, A127, A131, A134, A138-39; UC 14: A153-54, A185-86). He told the officer not to buy crack from female sellers who sold on the street (UC 206: A85, A128-29), and indicated that although sellers inside 1960 Park Avenue would not deal with the officer because they did not know him, defendant would act as a middleman (UC 206: A131-32). Defendant instructed the undercover officer to wait outside of 1960 Park Avenue, went into the building, and emerged one minute later with crack, which he handed to the officer (UC 206: A86- 87, A93-101, A133, A138-39; UC 14: A187). Those facts are indistinguishable from those in People v. Herring, 83 N.Y.2d 780 (1994), in which this Court held that “no reasonable view of the evidence” suggested that defendant had acted as an agent of the buyer. Id. at 782. There, an -55- undercover officer approached Herring, “a stranger” with whom the officer had “had no prior contact,” and asked him whether he had “any nickels.” Id. at 782-83 Herring “instantly understood” that the officer wanted to buy cocaine. Id. He led the officer to a nearby building, accepted money from him, went inside, and obtained four vials of cocaine from an accomplice. Id. Herring returned to the undercover officer, gave him the cocaine and departed. Id. When Herring was arrested, he did not possess any prerecorded buy money. See Herring, 83 N.Y.2d at 784 (dissent). Herring was tried for selling the cocaine, the court refused to charge agency, the jury returned a guilty verdict, and this Court affirmed. Herring, 83 N.Y.2d at 782. This Court explained: The entitlement to an agency charge depends entirely on the relationship between the buyer and the defendant. Unless some reasonable view of the evidence supports the theory that defendant was acting only on behalf of the buyer, the jury need not be instructed on the agency defense. . . . A defendant may be guilty as a seller even if he does not receive any consideration for the transfer of drugs to the buyer and . . . solicitation or the lack of it is not dispositive. Similarly, evidence that defendant was acting as a middleman is not sufficient to warrant such a charge Id. (emphasis added). Here, as in Herring, the undercover officer had had no prior contact with defendant. As in Herring, defendant “instantly understood” that the officer wanted to buy drugs; indeed, defendant judged that the officer was a potential buyer and engaged him before the officer said anything (UC 206: A83-84, A89, A126, A139). -56- Further, when the undercover officer said he wanted crack, defendant did not so much as blink an eye before telling the officer to “follow him” (UC 206: A84, A88-90, A126, A137-38). In other words, just as in Herring, defendant met a “complete stranger” on the street and “instantly” agreed to engage in the drug sale. Herring, 83 N.Y.2d at 782-783. All told, for present purposes, this case is identical to Herring. Defendant and Herring both led an undercover officer to a building, controlled access to the building by making the officer wait outside, entered alone, and emerged shortly thereafter with the drugs that the undercover officer had requested. See id. at 782-83. Put simply, he acted as a “middleman.” Starling, 85 N.Y.2d at 515 (“the laws prohibiting narcotics sales encompass the actions of a ‘middleman,’ who acts as a broker between the seller and the buyer and whose role in the transaction may go no farther than that of a deliverer of the narcotics . . . even if he does not receive any consideration for the transfer of drugs to the buyer”) (internal quotation marks omitted). And, as Herring had done, defendant had evidently disposed of the prerecorded buy money inside the sale site, as none was found on him at the time of his arrest. See id. In short, as in Herring, “[t]he jury could not reasonably conclude from the evidence that defendant was acting solely as an extension of the buyer.” Id. at 783. Because, under Herring, no reasonable view that defendant had acted as an agent of the buyer existed in the first place, the prosecution’s proof that defendant had not been an agent was overwhelming. -57- * * * In sum, because the record contained no evidence, one way or the other, regarding whether defendant had ever engaged in drug sales, the court appropriately omitted an optional jury instruction that would have encouraged the jury to speculate on matters not in evidence. Defendant’s unpreserved contentions to the contrary are meritless. -58- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: DAVID P. STROMES Assistant District Attorney PATRICK J. HYNES DAVID P. STROMES Assistant District Attorneys Of Counsel February 14, 2013 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 14884, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.
