The People, Respondent,v.Benny Garay, Appellant.BriefN.Y.February 10, 2015To be Argued by: ADAM J. BERNSTEIN (Time Requested: 20 Minutes) APL-2013-00355 New York County Indictment Nos. 3618N/08 and 1153/08 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – BENNY GARAY, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ADAM J. BERNSTEIN JAMES H. BOROD Of Counsel ANDREW C. FINE Of Counsel PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019 Tel.: (212) 373-3000 Fax: (212) 757-3990 – and – STEVEN BANKS THE LEGAL AID SOCIETY 199 Water Street New York, New York 10038 Tel.: (212) 577-3440 Fax: (646) 616-4440 Attorneys for Defendant-Appellant February 14, 2014 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT .............................................................................. 1 QUESTIONS PRESENTED ..................................................................................... 3 SUMMARY OF ARGUMENT ................................................................................ 4 STATEMENT OF FACTS ....................................................................................... 6 A. Facts Relevant To The Motion To Suppress ........................................ 7 1. The Criminal Complaint ............................................................ 7 2. Arraignment ............................................................................... 8 3. The First Indictment ................................................................... 9 4. Discovery Prior To The Request For A Suppression Hearing ..................................................................................... 10 5. Appellant’s Motion For A Suppression Hearing; The People’s Response; The Court’s June 16, 2008 Order ............ 10 6. Pre-Trial Demand For A Suppression Hearing ....................... 11 B. Trial Proceedings ................................................................................ 11 1. Courtroom Closure During the Trial Testimony Of Two Undercover Police Officers ...................................................... 11 2. Discharge Of Juror When Appellant’s Trial Counsel Was Absent ...................................................................................... 13 3. Verdict And Sentencing ........................................................... 15 C. Appeal................................................................................................. 15 1. Appellate Division, First Department ...................................... 15 2. Application For Leave To Appeal To The Court Of Appeals ..................................................................................... 17 ii ARGUMENT .......................................................................................................... 17 I. THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT TO COUNSEL BY HOLDING A HEARING AND DISCHARGING A SWORN AND SEATED JUROR WHILE APPELLANT’S TRIAL COUNSEL WAS ABSENT ..... 17 A. The Trial Court Violated Mr. Garay’s Right To Counsel .................. 17 B. This Issue Is Properly Before This Court ........................................... 22 II. THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL BY FAILING TO SUA SPONTE CONSIDER REASONABLE ALTERNATIVES TO COURTROOM CLOSURE ......................................................................... 24 A. The Trial Court Violated Mr. Garay’s Right To A Public Trial ........ 24 B. Echevarria Is Irreconcilable With United States Supreme Court Precedent And Sets Forth An Unworkable Standard ......................... 26 C. This Issue Is Properly Before This Court ........................................... 29 III. THE TRIAL COURT ERRED BY SUMMARILY DENYING APPELLANT A SUPPRESSION HEARING ............................................. 31 CONCLUSION ....................................................................................................... 37 iii TABLE OF AUTHORITIES Page(s) Cases Hunte v. Keane, No. CV 97–1879(RR), 1999 WL 754273 (E.D.N.Y. Aug. 24, 1999) ................................................................................... 20 Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012) ........................................................... 28 In re Oliver, 333 U.S. 257 (1948) ............................................................................................ 25 People v. Ahmed, 66 N.Y.2d 307 (1985) ......................................................................................... 22 People v. Allah, 80 N.Y.2d 396 (1992) ......................................................................................... 21 People v. Alvarez, 20 N.Y.3d 75 (2012) ........................................................................................... 30 People v. Bailey, 218 A.D.2d 569 (1st Dep’t 1995) ....................................................................... 31 People v. Bing, 76 N.Y.2d 331 (1990) ......................................................................................... 18 People v. Bryant, 8 N.Y.3d 530 (2007) ..................................................................................... 35, 36 People v. Buford, 69 N.Y.2d 290 (1987) ......................................................................................... 20 People v. Burton, 6 N.Y.3d 584 (2006) ........................................................................................... 32 People v. Chapman, 69 N.Y.2d 497 (1987) ................................................................................... 18, 19 People v. Echevarria, 21 N.Y.3d 1 (2013) ......................................................................................passim iv People v. Felder, 47 N.Y.2d 287 (1979) ......................................................................................... 18 People v. Harris, 77 N.Y.2d 434 (1991) ......................................................................................... 18 People v. Hightower, 85 N.Y.2d 988 (1995) ......................................................................................... 35 People v. Hinton, 31 N.Y.2d 71 (1972) ........................................................................................... 12 People v. Hodge, 53 N.Y.2d 313 (1981) ......................................................................................... 18 People v. Jackson, 7 A.D.3d 813 (2d Dep’t 2004) ............................................................................ 30 People v. Johnson, 189 A.D.2d 318 (4th Dep’t 1993) ................................................................passim People v. Jones, 95 N.Y.2d 721 (2001) ......................................................................................... 31 People v. Lopez, 16 N.Y.3d 375 (2011) ..................................................................................... 4, 17 People v. Lopez, 263 A.D.2d 434 (1st Dep’t 1999) ....................................................................... 32 People v. Margan, 157 A.D.2d 64 (2d Dep’t 1990) .................................................................... 21, 23 People v. Martin, 16 N.Y.3d 607 (2011) ......................................................................................... 28 People v. McLean, 15 N.Y.3d 117 (2010) ......................................................................................... 23 People v. Mendoza, 82 N.Y.2d 415 (1993) ..................................................................................passim People v. Mezon, 80 N.Y.2d 155 (1992) ......................................................................................... 24 v People v. Narayan, 54 N.Y.2d 106 (1981) ......................................................................................... 23 People v. O’Rama, 78 N.Y.2d 270 (1991) ........................................................................................... 2 People v. Peque, 22 N.Y.3d 168 (2013) ......................................................................................... 27 People v. Ramos, 99 N.Y.2d 27 (2002) ........................................................................................... 18 People v. Richardson, 296 A.D.2d 334 (1st Dep’t 2002) ....................................................................... 30 People v. Rivera, 42 A.D.3d 160 (1st Dep’t 2007) ......................................................................... 32 People v. Rosario, 9 N.Y.2d 286 (1961) ........................................................................................... 21 People v. Sanabria, 301 A.D.2d 307 (1st Dep’t 2002) ....................................................................... 26 People v. Sanders, 56 N.Y.2d 51 (1982) ........................................................................................... 22 People v. Sobotker, 43 N.Y.2d 559 (1978) ......................................................................................... 34 People v. Spence, 239 A.D.2d 218 (1st Dep’t 1997) ....................................................................... 30 People v. Strothers, 87 A.D.3d 431 (1st Dep’t 2011) ............................................................. 21, 22, 23 People v. Ventura, 113 A.D.3d 443 (1st Dep’t 2014) ....................................................................... 20 People v. Vilsaint, 293 A.D.2d 555 (2d Dep’t 2002) ........................................................................ 26 People v. Wardlaw, 6 N.Y.3d 556 (2006) ........................................................................................... 18 vi Presley v. Georgia, 558 U.S. 209 (2010) .....................................................................................passim State v. Cox, 297 Kan. 648 (2013) ........................................................................................... 28 State v. Wise, 176 Wash. 2d 1 (2012) ........................................................................................ 28 United States v. Agosto-Vega, 617 F.3d 541 (1st Cir. 2010) ............................................................................... 28 United States v. Gupta, 699 F.3d 682 (2d Cir. 2011) ............................................................................... 28 United States v. Lucas, 932 F.2d 1210 (8th Cir. 1991) ............................................................................ 26 United States v. Martinez, No. 06 CR. 0591(RPP), 2007 WL 2710430 (S.D.N.Y. Sept. 14, 2007) ................................................................................... 26 United States v. Waters, 627 F.3d 345 (9th Cir. 2010) .............................................................................. 28 Waller v. Georgia, 467 U.S. 39 (1984) ........................................................................................ 25, 26 Other Authorities C.P.L. § 270.15 ........................................................................................................ 22 C.P.L. § 270.35 ........................................................................................................ 20 C.P.L. § 470.05 ........................................................................................................ 30 C.P.L. § 710.60 ........................................................................................................ 32 N.Y. Const. art. I, §6 ................................................................................................ 17 U.S. Const. amend. VI ............................................................................................. 25 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- BENNY GARAY, Defendant-Appellant. PRELIMINARY STATEMENT By leave of Hon. Robert S. Smith, granted on December 19, 2013 (A-2), Benny Garay appeals from an order of the Appellate Division, First Department, entered June 20, 2013, which affirmed, in an opinion (A-3 to A-6, People v. Garay, 107 A.D.3d 580), a judgment of the Supreme Court, New York County, rendered on June 23, 2010, convicting Mr. Garay, after a jury trial, of one count of Criminal Possession of a Controlled Substance in the Fifth Degree, P.L. § 220.06(5). Mr. Garay was sentenced to time served, having been incarcerated for 26 months. (A-213 to A-222.) On February 13, 2014, this Court granted Mr. Garay permission to appeal as a poor person, and assigned Steven Banks, Esq., The Legal Aid Society, as counsel. Paul, Weiss, Rifkind, Wharton & Garrison LLP has undertaken to serve as pro bono counsel on appeal. 2 The issue raised in Point I of this appeal involves an error affecting “‘the mode of proceedings prescribed by law,’” People v. O’Rama, 78 N.Y.2d 270, 279 (1991) (internal citation omitted), and therefore presents a question of law for this Court’s review. The issue raised in Point II of this appeal is preserved by counsel’s argument against courtroom closure. (A-80 to A-85.) The issue raised in Point III of this appeal is preserved by counsel’s motion for a suppression hearing. (A-62 to A-81.) 3 QUESTIONS PRESENTED 1. Whether the trial court’s discharge of a sworn and seated juror while Appellant’s trial counsel was absent from the courtroom violated Appellant’s right to counsel under the New York Constitution? 2. Whether the trial court violated Appellant’s right to a public trial under the United States Constitution by failing to sua sponte consider reasonable alternatives to closure before ordering the courtroom closed during the testimony of two undercover police officers? 3. Whether the trial court erred by summarily denying Appellant’s request for a suppression hearing? 4 SUMMARY OF ARGUMENT This Court has vigorously protected the right to counsel enshrined in the New York Constitution. The right to counsel is a “cherished and valuable protection” that “must be guarded with the utmost vigilance.” People v. Lopez, 16 N.Y.3d 375, 380 (2011). If the right to counsel guarantees anything, surely it guarantees that a criminal defendant’s attorney cannot be physically absent from the courtroom during a critical stage of the trial. Yet that is what happened here. Defendant-Appellant Benny Garay was tried in connection with an alleged drug ring led by his co-defendant, Lillian Rivera. Several weeks into trial, the trial court held a hearing to discuss a sworn and seated juror who had called in sick. Mr. Garay’s trial counsel was absent from that hearing. Counsel for Ms. Rivera advanced several arguments against discharging the juror. The trial court considered these arguments, rejected them, and ruled that it would discharge the juror and replace him with an alternate. The trial court’s decision to proceed with this hearing in the absence of Mr. Garay’s trial counsel violated Mr. Garay’s right to counsel and requires reversal. The First Department applied the wrong legal standard in rejecting Mr. Garay’s right to counsel claim, relying on an unreported federal decision which analyzed the right to counsel under federal law. The First Department’s decision creates uncertainty regarding the scope of New York’s right to counsel, and must be corrected by this Court. As the Fourth Department correctly held over 5 twenty years ago in People v. Johnson, 189 A.D.2d 318 (4th Dep’t 1993), the discharge of a juror in the absence of a defendant’s counsel is a mode of proceedings error that requires reversal. The First Department also erred by requiring preservation of a right to counsel claim which occurred at a hearing where Mr. Garay’s counsel was physically absent. This requirement is impossible to meet, and is in any event foreclosed by this Court’s precedent. The trial court below made two additional errors requiring this Court’s intervention. First, the trial court violated Mr. Garay’s right to a public trial by closing the courtroom during the testimony of two undercover officers without any on-the- record consideration of reasonable alternatives to closure. This error violates the express terms of the United States Supreme Court’s decision in Presley v. Georgia, which mandates that trial courts sua sponte consider reasonable alternatives to courtroom closure and that their consideration “be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” 558 U.S. 209, 214-15 (2010) (per curiam) (internal quotation marks and citation omitted). The record here is bereft of any evidence that the trial court considered any alternatives to closure, squarely presenting the concerns raised by Chief Judge Lippman in his dissent in People v. Echevarria, 21 N.Y.3d 1 (2013). Simply put, Echevarria, in which this Court affirmed an “implied” consideration standard, cannot be reconciled with Presley’s requirement 6 that trial courts make “articulated” and “specific” findings supporting courtroom closure. This case thus presents an opportunity for this Court to revisit—and rectify—its holding in Echevarria. Second, the trial court erred in summarily denying Mr. Garay’s request for a suppression hearing. In light of the limited allegations against him at the time he moved for a hearing, Mr. Garay’s suppression papers raised sufficient factual questions to make summary denial inappropriate. The First Department’s affirmance of this summary denial transforms this Court’s holding in People v. Mendoza, 82 N.Y.2d 415 (1993), into a standard no defendant can meet. STATEMENT OF FACTS On March 7, 2008, Benny Garay spoke with a family friend, Lillian Rivera, on the phone. Ms. Rivera asked Mr. Garay to pick her up at her home in the Bronx. Police investigating Ms. Rivera, the target of a long-running drug investigation, overheard these conversations on a wiretap. Mr. Garay then drove Ms. Rivera from the Bronx to Manhattan. When Mr. Garay and Ms. Rivera returned to the Bronx, Mr. Garay parked outside Ms. Rivera’s building, went into her apartment, returned to his car and drove off. Police officers then stopped, searched, and arrested Mr. Garay. Mr. Garay was subsequently placed in a police van, at which point he was searched again. During this second search, the police allegedly found a small amount of cocaine in Mr. Garay’s pocket. The police also allegedly recovered a kilogram of cocaine from Ms. Rivera’s apartment. 7 Mr. Garay was charged with one count of Conspiracy in the Second Degree (to engage in the sale and possession of cocaine), P.L. § 105.15, one count of Criminal Possession of a Controlled Substance in the First Degree (cocaine), P.L. § 220.21(1), one count of Criminal Possession of a Controlled Substance in the Third Degree (cocaine), P.L. § 220.16(1), and one count of Criminal Possession of a Controlled Substance in the Fifth Degree (cocaine), P.L. § 220.06(1). (A-31 to A-57; A-90 to A-123.) Mr. Garay was tried jointly with Ms. Rivera in the spring of 2010. A jury acquitted Mr. Garay of every charge except Criminal Possession of a Controlled Substance in the Fifth Degree. (A-207 to A-208.) Ms. Rivera was convicted on all counts, including Conspiracy in the Second Degree and multiple counts of Criminal Sale of a Controlled Substance in the Third Degree. (A-202 to A-204.) A. Facts Relevant To The Motion To Suppress 1. The Criminal Complaint Mr. Garay was initially charged in a criminal complaint alleging that he was a member of a narcotics trafficking organization headed by Lillian Rivera and others.1 (A-7 to A-12.) Fourteen of the complaint’s twenty-two paragraphs were devoted to describing alleged purchases of crack-cocaine from Ms. Rivera or her 1 The Complaint broadly alleged that the “defendants and other members of the organization”: “(1) obtained and transported quantities of cocaine; (2) possessed, processed, packaged, and stored quantities of cocaine; (3) communicated with each other and others for the purpose of engaging in cocaine [sic]; (4) distributed and sold quantities of cocaine and (5) maintained sources of cocaine and heroin supply.” (A-8.) However, the Complaint did not specifically tie those allegations to Mr. Garay, other than as noted below. 8 accomplices, Aaron Gonder and Mario Bracero, between August 2007 and December 2007. (A-8 to A-10 at ¶¶ 1-14.) Mr. Garay was named in only four paragraphs of the complaint, which alleged that Mr. Garay gave Ms. Rivera a ride on March 7, 2008, that he possessed a New York City Police Department identification card, and that police recovered “a quantity of cocaine” from Mr. Garay’s person. (A-11 at ¶¶ 15-18.) 2. Arraignment On March 8, 2008, Mr. Garay was arraigned along with six co-defendants. (A-13 to A-30.) The Assistant District Attorney (“ADA”) explained that the case involved a “long-term investigation” of “a narcotics trafficking organization that ha[d] been run by Lillian Rivera and her associates for, at least, the past decade.” (A-15 at 8-12.) The ADA further stated that the investigation “yielded” a lot of information, but made clear that the People were “not disclosing” all of it at that time. (Id. at 13-15.) At the arraignment, the ADA alleged that Mr. Garay was Ms. Rivera’s driver and “had a number of cars registered to his name which . . . have been associated with Lillian Rivera, that she has been seen in . . . .” (A-17 at 9-13.) The ADA further alleged that Mr. Garay had driven Ms. Rivera on March 7, 2008, and that when Mr. Garay was arrested, he had a small amount of cocaine that “appeared to have been cut” from a kilogram that was found in Ms. Rivera’s apartment. (Id. at 5-18.) 9 Defense counsel emphasized the minimal allegations against Mr. Garay, noting “there isn’t much to be said about Mr. Garay in [the criminal] complaint.” (A-22 at 11-20.) 3. The First Indictment The Grand Jury subsequently indicted seven individuals, including Mr. Garay. (A-31 to A-57.) The indictment alleged that the named defendants were members of a narcotics trafficking conspiracy and in furtherance of that conspiracy they: “(1) obtained and transported quantities of cocaine; (2) possessed, processed, packaged, and stored quantities of cocaine; (3) communicated with each other and others for the purpose of engaging in cocaine sales; (4) distributed and sold quantities of cocaine; and (5) maintained sources of cocaine supply.” (A-32.) The indictment alleged twenty-two overt acts in furtherance of the conspiracy. Mr. Garay was named in four: 15. On March 7, 2008, defendant BENNY GARAY operated a motor vehicle in the vicinity of 2181 Wallace Avenue, Bronx County, New York, in which LILLIAN RIVERA, a/k/a “Ills”, was a passenger. 16. On March 7, 2008, in the vicinity of 2181 Wallace Avenue, Bronx County, New York, defendant BENNY GARAY displayed a New York City Police Department identification card when approached by a police officer. 17. On March 7, 2008, in the vicinity of 2181 Wallace Avenue, Bronx County, New York, defendant BENNY GARAY possessed a quantity of cocaine. [ . . . ] 10 22. On March 7, 2008, in the vicinity of 2181 Wallace Avenue, Bronx County, New York, defendant BENNY GARAY possessed approximately one kilogram of cocaine. (A-35 to A-36.) The indictment contained no other specific facts relating to Mr. Garay. (See, e.g., A-55 to A-56 at Counts 40 to 42.) 4. Discovery Prior To The Request For A Suppression Hearing In a letter dated April 17, 2008, the People provided notice of various items that were recovered from Mr. Garay “and/or co-defendants to be tried jointly.” The items included cocaine and United States currency. (A-58 to A-59.) 5. Appellant’s Motion For A Suppression Hearing; The People’s Response; The Court’s June 16, 2008 Order On May 20, 2008, Mr. Garay moved for a suppression hearing. (A-62 to A- 81.) The motion was supported by an affirmation from Mr. Garay’s attorney, alleging, inter alia, that: (1) “Defendant was not committing a crime at the time he was detained thus any such [sic] was unlawful”; (2) “The defendant was not engaged in any criminal conduct”; (3) “No contraband was in plain view”; (4) “The defendant was stopped pursuant to dropping off a family member in the County of New York”; and (5) that “the police did not have probable cause to search his person.” (A-78 to A-79.) The People submitted an Affirmation in Response on May 28, 2008. (A-82 to A-87.) The People alleged only that the relevant “evidence was lawfully obtained,” and that “defendant is not entitled to a hearing, because defendant’s 11 motion does not contain ‘sworn allegations of fact’ that are necessary to warrant a suppression hearing.” (A-84 at ¶¶ 13-14.) In an order dated June 16, 2008, Justice Gregory Carro, J.S.C., summarily denied appellant’s request for a suppression hearing, finding that “[t]he motion papers do not present a factual issue to be resolved at a hearing (People v Mendoza, 82 NY2d 415 [1993]).” (A-88 to A-89.) 6. Pre-Trial Demand For A Suppression Hearing Mr. Garay’s trial counsel raised the issue of a suppression hearing on April 5, 2010, prior to the start of jury selection. He asserted that “Mr. Garay was in his personal vehicle when he was arrested in this case, and I don’t know if the prior attorney or attorneys have moved for a Mapp hearing, but that’s something that I think Mr. Garay is entitled to.” When advised that the motion for a suppression hearing had previously been denied, Mr. Garay’s trial counsel protested: “It shouldn’t have been denied, a Mapp hearing.” The trial court promised to get Mr. Garay’s trial counsel a copy of the order denying the suppression hearing, but did not hold a suppression hearing then, or at any other time. (A-126 to A-127.) B. Trial Proceedings 1. Courtroom Closure During the Trial Testimony Of Two Undercover Police Officers On April 5, 2010, the trial court conducted a Hinton hearing to consider whether to close the courtroom during the trial testimony of two undercover police 12 officers.2 (A-128.) During the hearing, the undercover officers testified about their pending investigations, their general practices when entering the courthouse to testify, and their purported fear of testifying in open court. (A-128 to A-167.) The People argued that the courtroom should be closed during the testimony of the undercover officers. (A-167 to A-168.) Counsel for co-defendant Rivera objected to closure.3 (A-168 to A-172.) Mr. Garay’s trial counsel joined in opposing the closure “in all respects” and also requested “that [the Court] allow Mr. Garay’s family to be present in the courtroom” when the undercover officers testified. (A-173.) Over these objections, the trial court decided to close the courtroom during the testimony of the two officers. It found that the officers worked undercover in Manhattan, had been threatened in the course of their work, and took precautions when testifying. (A-173 to A-177.) The trial court noted that although the officers’ “safety . . . would be jeopardized should their identity become known,” it recognized that both officers had previously testified in open courtrooms with a defendant’s family present. (A-176 to A-177.) The trial court then ruled: In any event, I feel that the People have met their burden of closing the courtroom for the safety of these officers, 2 See People v. Hinton, 31 N.Y.2d 71 (1972). 3 Counsel for another co-defendant, who decided to plead guilty before trial commenced, also objected to the closure. (A-172 to A-173.) 13 as well as not to jeopardize any ongoing or future investigation. However, I don’t think you met your burden on family members or significant others. So what I would ask counsel to do, I would like a list of how they are related to the defendants, so we can allow them in the courtroom, but certainly, I’m going to want, if it’s a significant other, I’m going to want a date of birth so the People can run a rap sheet and make sure they are not involved in criminal activity before I allow them in. Certainly a grandmother, a mother or father I will allow in. So you can just give me the list, date of birth, and I'm going to have the People run those just to make sure they are not involved in this trade as well. (A-177.) The record does not reflect the trial court’s consideration of any alternatives to closure, such as the use of a screen, mask, or disguise to conceal the undercover officers’ identities. 2. Discharge Of Juror When Appellant’s Trial Counsel Was Absent On May 3, 2010, several weeks after the trial had begun, the trial court began the day by acknowledging that Mr. Garay’s trial counsel was not present: THE COURT: You standing in for [Mr. Garay’s trial counsel]? He’s not out there? A COURT OFFICER: No. THE COURT: Okay, this is the case on trial. All parties are present except for [Mr. Garay’s trial counsel], who has absented himself again. This is the second time. (A-188.) The trial court then referenced an off-the-record discussion that was apparently held that morning with counsel, as well as an off-the-record, ex parte communication the trial court had with a juror: 14 As I indicated when I spoke off the record with [Mr. Garay’s trial counsel], and as well as [co-defendant’s trial counsel] and the prosecution, one of the jurors has called in sick, [Juror Number Ten]. He says in no way can he make it in today. I asked him, you know, if we put off the morning, can you come in this afternoon and he said no. So, I’m going to replace [Juror Number Ten] with the next alternate up, which is—I believe, it’s [Alternate Number Two]— (A-188 to A-189.) At this point, counsel for co-defendant Lillian Rivera stated, “Your Honor, I spoke to [Mr. Garay’s trial counsel], I believe he is agreeing to the objection we’re making to replacing the juror.” (A-189.) Counsel for Ms. Rivera then advanced several arguments, including: that this was the jury chosen by the parties, that replacing this juror would leave “only one alternate left,” and that the juror’s sickness did not make him “unwilling or unable to serve.” (A-190 to A- 191.) Counsel for Ms. Rivera also argued that “there are not that many minorities on this jury,” and that one of the “two black jurors . . . would be replaced by a white juror.” 4 (A-191.) The trial court heard these arguments, rejected them, and concluded that, “for a number of reasons I am going to replace this juror.” (A-191.) The trial court continued: “I wish we can replace [Mr. Garay’s trial counsel]. Unfortunately we can’t.” (A-191 to A-192.) Mr. Garay’s trial counsel then entered the courtroom simultaneously with the jury. (A-192.) The trial court, 4 During the pretrial stage of the case, the trial judge excused a sworn juror after obtaining consent from each defense attorney. (A-182). The trial judge acknowledged that “[i]t is a [rare] occurrence that we excuse someone who has already been sworn . . . .” (A-183.) 15 without referencing the just-concluded hearing, said to one of the alternates, “[Alternate Number Two], you’re going to take that seat right over there, number ten. That will be your seat for the rest of the trial.” (Id.) At the next break, the trial court said to Mr. Garay’s trial counsel, “if you delay this case one more time it will cost you.” (A-194.) 3. Verdict And Sentencing On May 13, 2010, the jury found Mr. Garay guilty of one count of Criminal Possession of a Controlled Substance in the Fifth Degree, P.L. § 220.06(5), and acquitted him of all other charges. (A-207 to A-208.) The jury convicted Ms. Rivera of conspiracy in the second degree, six counts of criminal sale of a controlled substance in the third degree, and one count of criminal possession of a controlled substance in the third degree. (A-202 to A-204.) After the verdicts were read, the trial court released Mr. Garay on his own recognizance and allowed him to return for sentencing at a later date. (A-210 to A-211.) On June 23, 2010, the trial court sentenced Mr. Garay to time served. (A- 222.) By the time of his release, Mr. Garay had served 26 months in jail. (A-218, 220.) C. Appeal 1. Appellate Division, First Department Mr. Garay appealed his conviction to the Appellate Division, First Department, raising three issues. First, Mr. Garay argued that the trial court violated his constitutional right to counsel and a fair and just trial by discharging a 16 sworn and seated juror when his counsel was absent from the courtroom. Second, Mr. Garay argued that the trial court erred by summarily denying his suppression motion without a hearing. Third, Mr. Garay argued that the trial court violated his right to a public trial by failing to sua sponte consider reasonable alternatives to courtroom closure during the testimony of two undercover police officers. The Appellate Division, First Department, affirmed Mr. Garay’s conviction on June 20, 2013. (A-3 to A-6; People v. Garay, 107 A.D.3d 580 (1st Dep’t 2013).) On the first issue, the panel held that Mr. Garay had not preserved his claim that the trial court’s decision to hold a hearing in the absence of his trial counsel violated his right to counsel. (A-3.) As an alternative holding, it rejected Mr. Garay’s claim on the merits because (i) his trial counsel was involved in an off-the-record discussion regarding the ill juror; (ii) his co-defendant’s counsel conveyed to the trial court his trial counsel’s objection; and (iii) his trial counsel arrived in the courtroom before the sworn, seated juror was replaced by the alternate. (A-3 to A-4.) On the second issue, the panel held that Mr. Garay’s “allegations failed to raise a legal basis for suppression,” and that his motion papers were “insufficient to raise any factual dispute requiring a hearing.” (A-4 to A-5.) On the third issue, the panel held that Mr. Garay failed to preserve his “specific argument” regarding courtroom closure, but that, in any event, Presley v. Georgia “does not oblige a trial court to engage in an on-the-record review of all alternatives before deciding upon limited closure.” (A-5 to A-6.) 17 2. Application For Leave To Appeal To The Court Of Appeals Mr. Garay filed an application for leave to appeal to this Court on July 11, 2013. The application was assigned to the Honorable Robert S. Smith on July 22, 2013. On December 19, 2013, a leave conference was held before Judge Smith. On the same day, Judge Smith granted Mr. Garay’s application, and issued a certificate granting leave. (A-2.) ARGUMENT I. THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT TO COUNSEL BY HOLDING A HEARING AND DISCHARGING A SWORN AND SEATED JUROR WHILE APPELLANT’S TRIAL COUNSEL WAS ABSENT The New York Constitution guarantees a criminal defendant the right to have counsel at all critical phases of trial. Here, Mr. Garay’s counsel was absent when the trial court held a hearing and discharged a sworn and seated juror weeks into trial. The trial court’s decision to hold this hearing in the absence of Mr. Garay’s counsel and to discharge the juror at that hearing requires reversal of Mr. Garay’s conviction. A. The Trial Court Violated Mr. Garay’s Right To Counsel The New York Constitution guarantees that “[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel . . . .” N.Y. Const. art. I, § 6. “New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance.” Lopez, 16 N.Y.3d at 380. Indeed, “since most constitutional 18 rights are not self-executing, the right to counsel may be the most basic of all.” People v. Hodge, 53 N.Y.2d 313, 317–18 (1981). This “most basic” protection of New York’s Constitution is “far more expansive than the Federal counterpart.” People v. Bing, 76 N.Y.2d 331, 338–39 (1990); see also People v. Harris, 77 N.Y.2d 434, 439 (1991) (“The safeguards guaranteed by this State’s Right to Counsel Clause are unique.”); accord People v. Ramos, 99 N.Y.2d 27, 33 (2002) (noting “New York’s constitutional right to counsel jurisprudence ‘developed independent of its Federal counterpart’ and offers broader protections”) (internal citation omitted). New York’s constitutional right to counsel applies to “every critical stage of the proceeding” in a criminal trial. People v. Chapman, 69 N.Y.2d 497, 500 (1987). As relevant here, “[j]ury selection is a critical stage of a criminal proceeding and a defendant ‘has a constitutional right to a particular jury chosen according to law, in whose selection he has had a voice.’” Johnson, 189 A.D.2d at 320 (quoting People v. Ivery, 96 A.D.2d 712, 712 (4th Dep’t 1983)). A defendant’s right to counsel is violated if counsel is absent from a critical stage of a criminal proceeding. See Chapman, 69 N.Y.2d at 500-01. A violation of the right to counsel at trial requires reversal. See, e.g., People v. Felder, 47 N.Y.2d 287, 295-96 (1979) (“A denial of the right to assistance of counsel . . . invalidates the trial.”); cf. People v. Wardlaw, 6 N.Y.3d 556, 561 (2006) (limiting harmless error analysis to certain violations of the right to counsel at pretrial hearings). 19 In this case, Mr. Garay’s right to counsel was violated when the trial court held a hearing and discharged a sworn and seated juror while Mr. Garay’s trial counsel was physically absent from the courtroom. (See A-188 to A-192.) The trial court recognized the significance of the hearing when it noted on the record— and expressed irritation—that Mr. Garay’s trial counsel was not present. (A-188 at 21-22 (“All parties are present except for Mr. Conway who has absented himself again.”).) The trial court then raised the juror discharge issue, heard arguments from co-defendant’s counsel, rejected those arguments, and ruled that it would “replace [Juror] number ten with Alternate Number 2.” (A-188 to A-191.) The violation, as well as the required analysis, is simple. The trial court proceeded through a critical stage of the trial in the absence of Mr. Garay’s trial counsel. (A-188 to A-192; see Chapman, 69 N.Y.2d at 500.) The trial court’s decision to hold this hearing, and rule on the juror discharge in the absence of Mr. Garay’s trial counsel, violated Mr. Garay’s right to counsel. See Johnson, 189 A.D.2d at 320. This violation requires reversal. Id. In rejecting Mr. Garay’s right to counsel claim, the First Department made several crucial errors. First, it applied the wrong standard. Although New York law necessarily governs a claimed deprivation of New York’s constitutional right to counsel, the First Department analyzed Mr. Garay’s claim based on an unreported federal habeas decision cited by neither party below (or by any other New York state 20 court). See A-4 (citing Hunte v. Keane, No. CV 97–1879(RR), 1999 WL 754273 (E.D.N.Y. Aug. 24, 1999)). That decision’s review of prior proceedings under federal law offers no guidance on the proper scope of New York’s constitutional right to counsel. See Hunte, 1999 WL 754273, at *6. Second, the First Department’s substantive analysis of the deprivation of Mr. Garay’s right to counsel misapplied New York law. The characterization of the juror discharge hearing as a “brief discussion” (A-3) cannot be reconciled with the significant New York “constitutional right to a trial by a ‘particular jury chosen according to law, in whose selection [the defendant] has had a voice.’” People v. Buford, 69 N.Y.2d 290, 297–98 (1987) (alteration in original and citations omitted).5 Moreover, the Legislature has enacted a statute explicitly requiring that trial courts “afford the parties an opportunity to be heard before discharging a juror.” C.P.L. § 270.35(2)(b). Similarly, the First Department misapplied settled New York law by excusing this violation of the right to counsel because co-defendant’s counsel purportedly “conveyed to the court the defendants’ joint position in favor of retaining the juror if possible.” (A-4.) Mr. Garay has a constitutional right to “single-minded counsel for the accused,” not to counsel for a co-defendant. Cf. 5 Only last month the First Department acknowledged the serious constitutional issues implicated by jury composition and the important role for defense counsel in safeguarding these constitutional protections. See People v. Ventura, 113 A.D.3d 443, 179-80 (1st Dep’t 2014) (reversing conviction where trial court did not conduct an injury into possible juror bias; holding “there should have been an inquiry, in which defense counsel could participate”). 21 People v. Rosario, 9 N.Y.2d 286, 290 (1961). Mr. Garay did not consent to joint representation with Ms. Rivera, nor did he consent to have Ms. Rivera’s attorney appear on his behalf. See, e.g., People v. Allah, 80 N.Y.2d 396, 400 (1992) (“Where codefendants are represented by the same attorney, the trial court must inquire, on the record, whether each defendant has an awareness of the potential risks involved in that course and has knowingly chosen it.”). Therefore, it is irrelevant whether Ms. Rivera’s counsel “believe[d]” Mr. Garay’s counsel was joining in the objection. (A-189 at 10-12.) Simply put, it is no substitute. Third, the First Department departed from its own precedent and the precedents of sister Appellate Divisions in holding that proceeding with the juror discharge hearing in the absence of Mr. Garay’s trial counsel did not violate Mr. Garay’s right to counsel. While it does not appear that this Court has directly addressed the issue, the Second and Fourth Departments have previously recognized that holding a trial proceeding without defendant’s counsel violates that defendant’s right to counsel and requires reversal. See Johnson, 189 A.D.2d at 320-21 (reversing conviction where trial court conducted voir dire and discharged sworn juror in absence of defense counsel); People v. Margan, 157 A.D.2d 64, 70- 71 (2d Dep’t 1990) (reversing conviction where trial court allowed direct examination of witness in absence of defense counsel); see also People v. Strothers, 87 A.D.3d 431, 435 (1st Dep’t 2011) (holding appeal in abeyance and 22 remanding for a new suppression hearing where trial court conducted part of hearing in absence of defense counsel). The Fourth Department’s analysis in Johnson is instructive. There, the trial court was conducting voir dire in a criminal proceeding when a sworn juror asked to be discharged because of a family emergency. Johnson, 189 A.D.2d at 319. The Supreme Court discharged the juror pursuant to C.P.L. § 270.15(3), without consulting defendant or defense counsel. Id. On appeal, the Fourth Department reversed, noting that “[b]ecause a juror, whom defendant had accepted and who had been sworn, was discharged by the court outside the presence of defense counsel, defendant was denied the minimum safeguard necessary to afford him a ‘fair and just hearing.’” Id. (quoting People v. Mullen, 44 N.Y.2d 1, 5 (1978)). The same result should obtain here. B. This Issue Is Properly Before This Court Mr. Garay’s right to counsel claim is properly before this Court. It is axiomatic that “mode of proceedings errors,” including deprivation of the right to counsel, are not subject to preservation requirements. See, e.g., People v. Ahmed, 66 N.Y.2d 307, 310-11 (1985) (“[W]e have long recognized that certain errors need not be preserved,” including “violation[s] of the right to counsel . . . .”); People v. Sanders, 56 N.Y.2d 51, 66 (1982) (noting that a right to counsel claim is “so fundamental that it may be raised for the first time on appeal”). Accordingly, a right to counsel claim can be raised for the first time on appeal, 23 provided the deprivation is established on the face of the record. See People v. McLean, 15 N.Y.3d 117, 121 (2010). Applying this guidance, New York courts have consistently applied the common-sense principle that if defense counsel is physically absent during a violation of defendant’s right to counsel, that violation can be raised for the first time on appeal. See Strothers, 87 A.D.3d at 433; cf. People v. Narayan, 54 N.Y.2d 106, 112 (1981) (concluding that right to counsel claim requires contemporaneous objection only “where counsel acting on defendant’s behalf is present and available to register a protest”). As the First Department explained in Strothers, “[w]here counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal.” 87 A.D.3d at 433; see also Margan, 157 A.D.2d at 70 (applying “the general rule that a violation of the right to counsel may be raised, as a question of law, for [the] first time on appeal”). Here, Mr. Garay’s trial counsel could not make a contemporaneous objection during the juror discharge hearing because he was not there. The violation is clear on the face of the record, and no preservation requirement applies. The First Department’s suggestion that Mr. Garay’s trial counsel was required to object once he re-entered the courtroom does not change this analysis. (A-3 to A-4.) That is because the deprivation of Mr. Garay’s right to counsel was complete when the trial court decided to replace the sworn and seated juror. The 24 subsequent reseating of an alternate juror was a ministerial act, not an opportunity for Mr. Garay’s trial counsel to re-open an issue that the trial court had already decided unfavorably. See, e.g., People v. Mezon, 80 N.Y.2d 155, 161 (1992) (“The law does not require litigants to make repeated pointless protests after the court has made its position clear.”). II. THE TRIAL COURT VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL BY FAILING TO SUA SPONTE CONSIDER REASONABLE ALTERNATIVES TO COURTROOM CLOSURE The trial court violated Mr. Garay’s right to a public trial by closing the courtroom during the testimony of two undercover officers without any on-the- record consideration of reasonable alternatives to courtroom closure. This error requires reversal of Mr. Garay’s conviction. The First Department’s contrary conclusion, in reliance on this Court’s “implied” consideration standard, People v. Echevarria, 21 N.Y.3d 1 (2013), is irreconcilable with the United States Supreme Court’s decision in Presley v. Georgia, 558 U.S. 209 (2010) (per curiam), and numerous courts across the country which have held that Presley’s requirement of “articulated . . . [and] specific” findings means exactly that. For this reason and those that follow, Mr. Garay respectfully urges this Court to overrule Echevarria. A. The Trial Court Violated Mr. Garay’s Right To A Public Trial The United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” 25 U.S. Const. amend. VI (emphasis added).6 This protection has long “been recognized as a safeguard against any attempt to employ our courts as instruments of persecution,” and “is an effective restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. 257, 270 (1948). The right to a public trial is so sacrosanct that trial courts have an affirmative obligation “to take every reasonable measure to accommodate public attendance at criminal trials.” Presley, 558 U.S. at 215. While there are circumstances that warrant courtroom closure, “[s]uch circumstances will be rare . . . and the balance of interests must be struck with special care.” Waller v. Georgia, 467 U.S. 39, 45 (1984). As the United States Supreme Court explained in Presley, prior to excluding the public from any stage of a criminal trial, trial courts “are required to consider alternatives to closure even when they are not offered by the parties.” Presley, 558 U.S. at 214 (emphasis added). Further, trial courts must “make findings adequate to support the closure” and those findings must be “specific enough that a reviewing court can determine whether the closure order was properly entered.” Presley, 558 U.S. at 214-15 (quoting Press-Enterprise Co. v. Superior Court of Cal., Cnty. Of Riverside, 478 U.S. 1, 15 (1986)) (internal quotation marks omitted). Failure to consider reasonable alternatives to closure requires reversal of a defendant’s conviction. Presley, 558 U.S. at 216. 6 The Sixth Amendment applies to the States through the Fourteenth Amendment. See Presley, 558 U.S. at 211-12. 26 In this case, the trial court ordered closure during the testimony of two undercover officers, but did not articulate any “specific” findings reflecting its consideration of reasonable alternatives to courtroom closure. (A-176 to A-178.) For example, it did not consider placing a screen in front of the undercover officers, United States v. Lucas, 932 F.2d 1210, 1216-17 (8th Cir. 1991), People v. Vilsaint, 293 A.D.2d 555, 556 (2d Dep’t 2002), nor did it consider the use of devices to conceal the officers’ identity, United States v. Martinez, No. 06 CR. 0591(RPP), 2007 WL 2710430, at *3 (S.D.N.Y. Sept. 14, 2007). The trial court also did not consider stationing a court officer outside the courtroom to screen potential spectators. People v. Sanabria, 301 A.D.2d 307, 309-315 (1st Dep’t 2002). Indeed, there is no evidence that the trial court considered any alternatives to closure. (A-176 to A-178.) The trial court’s failure to sua sponte consider reasonable alternatives to closure violated Mr. Garay’s right to a public trial, and requires reversal of his conviction.7 Presley, 558 U.S. at 214-15. B. Echevarria Is Irreconcilable With United States Supreme Court Precedent And Sets Forth An Unworkable Standard In People v. Echevarria, this Court held that Presley does not require “a verbal on-the-record review of all potential alternatives before opting for a limited closure.” 21 N.Y.3d at 17–19. Instead, this Court concluded that “the absence of 7 Although the trial court allowed pre-screened family members to enter the courtroom, this was merely an accommodation to meet the Court’s independent obligation to ensure that the closure is no broader than necessary. (A-177; see Waller, 467 U.S. at 48.) 27 explicit discussions regarding alternatives is not fatal . . . where the record . . . otherwise suffices to establish the need to close a particular portion of the proceeding.” Id. The First Department relied on this holding in rejecting Mr. Garay’s public trial argument. (A-5 to A-6.) Echevarria directly conflicts with Presley, and numerous state and federal courts across the country. It also sets forth an unworkable standard. Accordingly, this Court should overrule Echevarria, and hold that trial courts must consider reasonable alternatives on-the-record before closing the courtroom in criminal trials. See People v. Peque, 22 N.Y.3d 168, 194 (2013) (noting decision may be overruled where this “Court’s prior holding ‘leads to an unworkable rule . . .’”). First, the Echevarria “implied” consideration standard is irreconcilable with Presley. Presley specifically requires that trial courts “make findings adequate to support closure,” and that those findings be “specific enough that a reviewing court can determine whether the closure order was properly entered.” Presley, 558 U.S. at 214-15. Presely overturned a criminal conviction because “[n]othing in the record shows that the trial court could not have accommodated the public at Presley’s trial.” Id. at 215. So too here, where nothing in the record shows that the trial court could not have accommodated the public at Mr. Garay’s trial by, for example, using a screen to shield the officers from the public, or by placing a court officer outside the courtroom to screen entrants. See Echevarria, 21 N.Y.3d at 23 (“There is nothing in this language that would suggest that the Supreme Court had 28 in mind that an ‘implied’ consideration of alternatives would be constitutionally acceptable.”) (Lippman, C.J., dissenting). Courts across the country have confirmed that Presley means what it says.8 The highest courts in a number of other states have interpreted Presley to require on-the-record consideration of reasonable alternatives to closure,9 as have a number of the United States Courts of Appeals.10 These decisions demonstrate the flaw in Echevarria’s reasoning, and compel this Court to revisit the issue. Second, the Echevarria “implied” consideration standard is unworkable because it frustrates meaningful appellate review. Where the trial record does not reflect explicit consideration of reasonable alternatives to courtroom closure, the 8 Indeed, this Court has previously interpreted Presley to require that trial courts must consider alternatives to closure on the record, even when not proposed by the parties. People v. Martin, 16 N.Y.3d 607, 612 (2011). 9 See State v. Wise, 176 Wash. 2d 1, 12-13 (2012) (concluding there was no consideration of alternatives to closure when none were apparent from the record: “We do not comb through the record or attempt to infer the trial court’s balancing of competing interests where it is not apparent in the record”); Lilly v. State, 365 S.W.3d 321, 329 (Tex. Crim. App. 2012) (holding “findings [of reasonable alternatives to closure] must be on the record and specific” and stating that a “reviewing court cannot ‘satisfy the deficiencies in the trial court’s record’ by making post hoc assertions inferring an overriding interest and . . . it is reversible error when the record fails to show that a trial court considered all reasonable alternatives to closure”); see also State v. Cox, 297 Kan. 648, 656 (2013) (holding that “the lack of meaningful consideration of alternatives,” even when not offered by the parties, violated the defendant’s right to a public trial). 10 See United States v. Gupta, 699 F.3d 682, 687-688 (2d Cir. 2011) (“[I]f a court intends to exclude the public from a criminal proceeding, it must first analyze the Waller factors and make specific findings with regard to those factors”); United States v. Waters, 627 F.3d 345, 361 (9th Cir. 2010) (reversing conviction where the district court, “provided only conclusory statements in support of its decision to close the hearing” and “failed to consider any alternatives to closing the courtroom”); United States v. Agosto-Vega, 617 F.3d 541, 547 (1st Cir. 2010) (“if . . . the closing was required by the circumstances, [the trial court] was required to substantiate its actions by specific findings in support thereof”). 29 trial court may have implicitly considered those alternatives, or it may not have. There is no way to know, and Echevarria places appellate courts in the impossible position of speculating about what the trial court implicitly considered. See Echevarria, 21 N.Y.3d at 23 (Lippman, C.J., dissenting) (“Presley does not contemplate an unreviewable, purely contemplative exercise in satisfaction of a trial court’s obligation to consider reasonable alternatives to court closure”). Mr. Garay’s trial illustrates this concern: there is no evidence in the record that the trial court considered alternatives to courtroom closure, but the First Department affirmed Mr. Garay’s conviction based on little more than post-hoc speculation. C. This Issue Is Properly Before This Court The First Department’s holding that Mr. Garay “did not preserve his specific argument concerning the court’s ruling on courtroom closure” (A-5) is contrary to clear precedent from the United States Supreme Court and this Court which requires only an objection to closure, not a request to consider alternatives. In Presley, defense counsel objected to the closure of the courtroom during jury selection. 558 U.S. at 210. Counsel in Presley did not specifically complain that the trial court failed to consider reasonable alternatives. Yet, the United States Supreme Court granted the appeal and reversed the defendant’s conviction, holding that it was incumbent upon trial courts “to consider alternatives to closure even when they are not offered by the parties.” Id. at 214. 30 Similarly, in People v. Alvarez, this Court reversed a conviction because the defendant’s parents had been excluded from attending jury selection. 20 N.Y.3d 75, 81 (2012). Defense counsel objected after the exclusion had already occurred, and then moved for a mistrial based on the prior exclusion. Id. at 79. This Court concluded that counsel’s objection to closure generally—and not specifically to the trial court’s failure to consider reasonable alternatives—“was sufficient to preserve the public trial issue.” Id. at 81. Here, Mr. Garay’s trial counsel clearly and unambiguously objected to courtroom closure during the Hinton hearing on April 5, 2010. At the hearing, counsel for Mr. Garay’s co-defendants made extensive objections to the closure, in which they argued that the People had not met their burden. (A-168 to A-173.) After co-counsel’s argument, Mr. Garay’s trial counsel “join[ed] in my co- counsels’ applications in all aspects.”11 This objection is all that is required under governing precedent to preserve the issue for appeal. Accordingly, Mr. Garay preserved this claim.12 11 A defendant can join in or adopt a jointly tried codefendant’s objection. See generally C.P.L. § 470.05; People v. Jackson, 7 A.D.3d 813, 814 (2d Dep’t 2004). 12 The First Department’s preservation ruling also is at odds with its own precedent, holding that a specific form of an objection is not required to preserve a Sixth Amendment public trial claim. See, e.g., People v. Richardson, 296 A.D.2d 334, 334 (1st Dep’t 2002) (holding “[d]efense counsel’s objection at trial to the exclusion of [defendant’s] nondisruptive children from the courtroom, although without specific reference to the right to a public trial, was sufficient to preserve the issue for appellate review”); People v. Spence, 239 A.D.2d 218, 219 (1st Dep’t 1997) (holding objection sufficient to preserve public trial issue although defense counsel did not specifically mention Sixth Amendment). 31 * * * For the reasons described above, Echevarria should be overruled, and Mr. Garay’s conviction reversed based on the trial court’s failure to engage in on- the-record consideration of reasonable alternatives to courtroom closure. III. THE TRIAL COURT ERRED BY SUMMARILY DENYING APPELLANT A SUPPRESSION HEARING The trial court improperly denied Mr. Garay’s request for a suppression hearing. In light of the limited information available at the time he moved for suppression, Mr. Garay’s motion raised factual issues making summary denial inappropriate. The First Department’s contrary conclusion misapplies the relevant legal standard and misapprehends the record. A court “may summarily deny a suppression motion only if the defendant does not allege a proper legal basis for suppression, or if the sworn allegations of fact do not as a matter of law support the ground alleged.” People v. Bailey, 218 A.D.2d 569, 570-71 (1st Dep’t 1995) (internal quotation marks omitted) (citing C.P.L. § 710.60(3)). In People v. Mendoza, this Court explained that: [T]he sufficiency of defendant’s factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information. 82 N.Y.2d at 426. Mendoza sets the “threshold for a hearing.” See People v. Jones, 95 N.Y.2d 721, 725 (2001) (quotation marks and citation omitted). Under this standard, “seemingly barebones allegations may, in context, be sufficient to 32 require a hearing,” particularly challenges to probable cause where “there is little else of consequence [a] defendant can say.” Mendoza, 95 N.Y.2d at 427-29. Indeed, this Court has recognized that in situations where “probable cause for a search is premised on the furtive behavior of a person . . . an accused can ‘raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched’” him or her. People v. Burton, 6 N.Y.3d 584, 590 (2006) (citation omitted). After Mendoza, “it is now firmly established that it is unreasonable to . . . requir[e] precise factual averments from the defendant where the defendant does not have access to or awareness of the facts necessary to support suppression.” People v. Rivera, 42 A.D.3d 160, 161 (1st Dep’t 2007) (reversing denial of suppression hearing) (emphasis in original). A defendant “need not prove his entire case in the motion papers,” People v. Lopez, 263 A.D.2d 434, 435 (1st Dep’t 1999), and “given that CPL § 710.60(3) merely permits, but does not mandate summary denial, the interest of judicial economy militates in favor of the court’s conducting a hearing on the suppression motion in the exercise of its discretion despite a perceived pleading deficiency.” Rivera, 42 A.D.3d at 161. Here, the trial court erred by summarily denying Mr. Garay’s request for a suppression hearing. The People’s allegations against Mr. Garay were sparse and unspecific. Given these deficiencies, Mr. Garay’s motion papers—which challenged the People’s probable cause and implicitly denied the People’s vague 33 conspiracy allegations—were sufficient to raise a factual issue requiring a suppression hearing. Mr. Garay’s suppression motion must be placed in “the context of the case.” Mendoza, 82 N.Y.2d at 427. At the time of Mr. Garay’s motion, the People’s allegations were articulated in four sources: (i) a criminal complaint; (ii) the ADA’s statements at arraignment; (iii) the First Indictment; and (iv) an April 17, 2008 letter from the Prosecutor. The specific allegations against Mr. Garay were as follows: • That Mr. Garay provided a ride to Ms. Rivera on March 7, 2008, and that he may have driven her on other occasions (A-11; A-17; A-48); • That vehicles that were registered to Mr. Garay—at some unspecified point in time—“ha[d] been associated with Ms. Rivera” (A-17); • That Mr. Garay displayed a New York City Police Department Identification card to officers on March 7, 2008 (A-11; A-17); and • That a quantity of cocaine was found on Mr. Garay’s person on March 7, 2008 (A-11; A-17). Given this context, Mr. Garay’s suppression motion challenged the People’s probable cause to arrest him by averring that he “was stopped pursuant to dropping off a family member in the County of New York,” that he was “not engaged in any criminal conduct,” that there was “no contraband . . . in plain view,” and that the “police did not have a warrant to arrest or search” him. (A-78 to A-79.) These factual averments contradicted the People’s barebones allegations against Mr. Garay, and no more was required. 34 Indeed, given the limited allegations against Mr. Garay, “there [was] little else of consequence” he could say. Mendoza, 82 N.Y.2d at 429. First, in seeking a suppression hearing, Mr. Garay had no reason to deny that he had driven Ms. Rivera, a family friend, from the Bronx to Manhattan and back on March 7, 2008, or on any other occasion. Second, Mr. Garay had no reason to deny that he had more than one vehicle registered to his name, as the ADA asserted at arraignment. (A-17 at 10-14.) Without more, this fact, and the fact that Ms. Rivera may have been “associated” with these vehicles, does not provide probable cause to arrest. Third, Mr. Garay had no reason to deny that he possessed a New York City Police Department identification card, as he was a New York City Police Department employee. Fourth, the People’s allegations that Mr. Garay possessed a quantity of cocaine at the time of his arrest did not establish probable cause because there is absolutely no averment or allegation that the People knew Mr. Garay had cocaine prior to stopping him. People v. Sobotker, 43 N.Y.2d 559, 565 (1978) (“a search may not be justified by its avails alone . . . were hindsight alone to furnish the governing criteria, a vital constitutional safeguard of our personal security would soon be gone”). The People’s boilerplate opposition to Mr. Garay’s motion for a suppression hearing provided no additional context. Rather, the People simply asserted that the “evidence was lawfully obtained,” and that Mr. Garay’s motion “does not contain ‘sworn allegations of fact’ that are necessary to warrant a suppression hearing.” 35 (A-84 ¶¶ 13-14.) As this Court made clear in People v. Hightower, “[b]y failing to set forth the facts leading to defendant’s arrest, the People failed to render defendant’s flat denial insufficient.” 85 N.Y.2d 988, 990 (1995). So too here. The First Department, in affirming Mr. Garay’s conviction, held that summary denial was appropriate because “the People apprised defendant that his arrest was based on his complicity in a drug-selling operation over the course of a long-term police investigation, and specifically upon his driving a person who had allegedly conducted a series of drug sales.” (A-4.) But the People did not explain how Mr. Garay was purportedly complicit in the alleged conspiracy. Far from it. The factual averments against Mr. Garay, as set forth above, did not tie Mr. Garay’s conduct to the supposed conspiracy. And in all events, even if the People had alleged that Mr. Garay knowingly drove a family friend who was alleged to have conducted drug sales, our legal system does not countenance guilt by association. The First Department instead turned Mendoza into a standard no defendant can meet, effectively requiring that criminal defendants charged with conspiracy respond to allegations against co-defendants, and speculate about the connections the People may one day make—even if those allegations are nowhere found in the materials to which a defendant has access. That is not the law, nor should it be. See generally People v. Bryant, 8 N.Y.3d 530, 534 (2007) (holding that a “defendant’s lack of access to information precluded more specific factual 36 allegations and created factual disputes, the resolution of which required a hearing”). Under the circumstances, where there was “little else of consequence” Mr. Garay could say, the factual allegations in his suppression motion were sufficient to require a suppression hearing. See Mendoza, 82 N.Y.2d at 429. CONCLUSION For the reasons stated in Point I and Point II, Mr. Garay's conviction should be reversed and a new trial ordered. At that new trial, the trial court should be ordered to hold a suppression hearing. In the alternative, this case should be remanded to the Supreme Court, New York County, for a hearing on the suppression of the physical evidence against Mr. Garay. Dated: New York, NY February 14, 2014 Respectfully submitted, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP By:~~ Adam J. Bernstein James H. Borod 1285 A venue of the Americas New York, NY 10019-6064 (212) 373-3000 abemstein@paulweiss.com jborod@paul weiss.com STEVEN BANKS THE LEGAL AID SOCIETY 199 Water Street, 5th Floor New York, New York 10038 Of Counsel: Andrew C. Fine (212) 577-3440 AF ine@legal-aid.org Attorneys for Defendant-Appellant 37