The People, Respondent,v.Benny Garay, Appellant.

Brief

N.Y.February 10, 2015

APL-2013-00355 To be argued by PATRICIA CURRAN (20 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - BENNY GARAY, 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 HILARY HASSLER PATRICIA CURRAN ASSISTANT DISTRICT ATTORNEYS Of Counsel MAY 8, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 POINT I DEFENDANT WAS NOT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN THE COURT REPLACED AN ILL JUROR WITH AN ALTERNATE JUROR ....................................... 8 A. ................................................................................................................................... 9 B. ................................................................................................................................. 12 POINT II THE COURT PROPERLY ORDERED A PARTIAL CLOSURE OF THE COURTROOM BASED ON THE EVIDENCE ADDUCED AT THE HINTON HEARING ..................................................................................................... 24 A. ................................................................................................................................. 25 B. ................................................................................................................................. 31 POINT III THE TRIAL COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR A HEARING BASED ON HIS MOTION TO SUPPRESS PHYSICAL EVIDENCE .................................................................................................. 41 A. ................................................................................................................................. 41 B. ................................................................................................................................. 46 CONCLUSION ................................................................................................................... 56 -ii- TABLE OF AUTHORITIES FEDERAL CASES Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc), cert. denied, 524 U.S. 958 (1998) .................................................................................. 38 Dunaway v. New York, 442 U.S. 200 (1979) .................................................................... 46 Hunte v. Keane, No. CV 97-1879 (RR) 1999 WL 754273 (E.D.N.Y. Aug. 24, 1999) .......................................................... 22-23 Johnson v. New York, 134 S.Ct. 823 (2013) ..................................................................... 25 Mapp v. Ohio, 367 U.S. 643 (1961) ....................................................................... 46, 49, 55 Presley v. Georgia, 558 U.S. 209 (2010) ................................................................ 31, 37, 39 Waller v. Georgia, 467 U.S. 39 (1984) ......................................................... 31-32, 36, 39-40 STATE CASES People v. Arrington, 14 A.D.3d 442 (1st Dept. 2005) ..................................................... 13 People v. Bracero, 99 A.D.3d 635 (1st Dept. 2012), leave denied, 20 N.Y.3d 1009 (2013) ............................................................................. 5 People v. Bryant, 8 N.Y.3d 530 (2007) .................................................................. 46-47, 55 People v. Burton, 6 N.Y.3d 584 (2006) ........................................................................ 47-49 People v. Cantave, 21 N.Y.3d 374 (2013) ......................................................................... 14 People v. Carracedo, 214 A.D.2d 404 (1st Dept. 1995) .................................................. 18 People v. Cartwright, 65 A.D.3d 973 (1st Dept. 2009) .................................................... 47 People v. Cummings, 271 A.D.2d 305 (1st Dept. 2000) ................................................. 32 People v. Davis, 6 A.D.3d 1168 (4th Dept. 2004) ........................................................... 13 People v. Echevarria, 21 N.Y.3d 1 (2013) .................................................. 25, 31-34, 36-40 People v. Felder, 47 N.Y.2d 287 (1979) ............................................................................ 18 -iii- People v. Ferguson, 67 N.Y.2d 383 (1986) ....................................................................... 20 People v. France, 12 N.Y.3d 790 (2009) ............................................................................ 47 People v. Garay, 107 A.D.3d 580 (1st Dept. 2013) .............................. 6, 11, 18-19, 36, 46 People v. Gray, 86 N.Y.2d 10 (1995) ................................................................................. 14 People v. Gruden, 42 N.Y.2d 214 (1977) ..................................................................... 46-48 People v. Hinton, 31 N.Y.2d 71 (1972) ........................................................... 24-25, 32, 36 People v. Jeanty, 94 N.Y.2d 507 (2000) ............................................................................. 13 People v. Johnson, 189 A.D.2d 318 (4th Dept. 1993) ......................................... 21, 36-37 People v. Johnson, 983 N.Y.S.2d 531 (1st Dept. 2014) .................................................. 34 People v. Jones, 47 N.Y.2d 409 (1979) .............................................................................. 32 People v. Jones, 96 N.Y.2d 213 (2001) .............................................................................. 36 People v. Kinchen, 60 N.Y.2d 772 (1983) ......................................................................... 17 People v. Lopez, 5 N.Y.3d 753 (2005) ............................................................................... 47 People v. Margan, 157 A.D.2d 64 (2d Dept. 1990) .......................................................... 17 People v. Martinez, 82 N.Y.2d 436 (1993) ................................................................... 31-32 People v. Medina, 18 N.Y.3d 98 (2011) ............................................................................. 14 People v. Mendoza, 82 N.Y.2d 415 (1993) ...................................................... 45-48, 54-55 People v. Narayan, 54 N.Y.2d 106 (1981) .................................................................... 15-17 People v. Page, 72 N.Y.2d 69 (1988) ................................................................................. 12 People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996) .......................................................... 47 People v. Ramos, 90 N.Y.2d 490 (1997) ......................................................... 31-33, 38, 40 People v. Rodriguez, 69 N.Y.2d 159 (1987) ...................................................................... 47 People v. Rodriguez, 95 N.Y.2d 497 (2000) ...................................................................... 20 -iv- People v. Settles, 46 N.Y.2d 154 (1978) ............................................................................ 18 People v. Silva, 99 A.D.3d 522 (1st Dept. 2012) leave granted, 21 N.Y.3d 1020 (2013) ............................................................................ 5 People v. Smallwood, 28 A.D.3d 238 (1st Dept. 2006) ................................................... 47 People v. Strothers, 87 A.D.3d 431 (1st Dept. 2011) ...................................................... 17 FEDERAL CONSTITUTIONAL PROVISIONS Fourth Amendment ................................................................................................. 46, 49, 55 Sixth Amendment ........................................................................................................... 25, 31 STATE STATUTES CPL § 270.35 ........................................................................................................................ 12 CPL § 270.35(2) ........................................................................................................ 12, 23-24 CPL § 270.35(2)(a) ................................................................................................................ 12 CPL § 470.05(2) ........................................................................................................ 14, 16, 22 CPL § 470.35 ......................................................................................................................... 17 CPL § 710.60(1) .............................................................................................................. 47, 49 CPL § 710.60(3)(b) ............................................................................................................... 49 Governor’s Mem 148R approving S.7929, ch 630, 1996 NY Legis. Ann at 450 ............................................................................... 12-13, 21 Judiciary Law § 4 ................................................................................................................... 31 N.Y. Civil Rights Law § 12 .................................................................................................. 31 Penal Law § 105.15 ................................................................................................................. 4 Penal Law § 220.06(5) ........................................................................................................ 1, 4 Penal Law § 220.16(1) ............................................................................................................ 4 Penal Law § 220.21(1) ............................................................................................................ 4 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- BENNY GARAY, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Robert Smith, granted on December 19, 2013, defendant Benny Garay appeals from an order of the Appellate Division, First Department, entered June 30, 2013. That order affirmed a June 23, 2010 judgment of the Supreme Court, New York County, convicting defendant, after a jury trial, of one count of Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06[5]). Defendant was sentenced to time served, having been incarcerated for 26 months. From July 2007 to March 2008, members of the New York City Police Department conducted a narcotics investigation into large-scale cocaine selling by Lillian Rivera and her associates at the Dyckman Housing Project in Upper Manhattan. Defendant functioned as Rivera’s driver several times during the police surveillance and drove Rivera on March 7, 2008, when she purchased a kilogram of -2- cocaine. More specifically, on March 7, 2008, after Rivera negotiated with her supplier, Julian Silva, to purchase a kilogram of cocaine from him later that day, Rivera telephoned defendant, and told him that she had to “take care of something today,” and that she wanted defendant to “do it with [her].” Although defendant initially replied that he did not have time, several hours later, defendant telephoned Rivera and told her he would be there in “two minutes.” Soon after, defendant arrived at Rivera’s Wallace Avenue apartment building in the Bronx in a burgundy Honda and entered Rivera’s building. About 20 minutes later, defendant emerged and entered the driver’s seat of the Honda; Rivera, who carried a large white bag, got into the passenger seat. 1 Defendant and Rivera drove to Pelham Parkway and at some point, onto the Sheridan Expressway. Detectives, who were parked in unmarked cars outside Rivera’s Bronx building, followed defendant’s burgundy Honda. But, on the Sheridan Expressway, defendant suddenly and quickly crossed several lanes of traffic after briefly entering an exit lane. The detectives dropped the tail since it would have been too obvious had they followed the Honda after defendant’s evasive maneuver. As defendant drove, Rivera had several telephone conversations with Silva. Defendant drove Rivera to a parking lot near a driving school on Payson Street in 1 This brief factual recitation is taken from the detailed summary of the evidence contained in the People’s Respondent’s Brief to the Appellate Division (see SA1-66). Numerical references preceded by “A” are to defendant’s appendix. Those preceded by “SA” are to the People’s Supplemental Appendix. -3- Manhattan to buy the kilo of cocaine from Silva’s cousin, who was driving a white Chysler Aspen. Several detectives, who were apprised of Rivera’s intercepted telephone calls with Silva, were already parked near Payson Street in unmarked cars. The detectives did not follow defendant’s Honda onto Payson Street for fear that defendant and Rivera would notice the police presence. Intercepted telephone calls at 5:54 p.m. and 5:58 p.m. and cell site information revealed that the Honda and a white Chrysler Aspen were together on the side of the driving school to consummate the cocaine sale. Although the police were unable to apprehend Rivera and defendant at the parking lot where the drug purchase occurred, detectives concluded that the drugs had been transferred from Silva’s cousin to Rivera. Using cell site information to follow defendant and Rivera back to Rivera’s Wallace Avenue building, detectives parked near her building and waited there a short while until defendant and Rivera arrived on the block in defendant’s car. Rivera got out of the car carrying a bag that was consistent with the size and shape of a kilogram of cocaine. Defendant followed Rivera inside her building, emerged about 20 minutes later, and drove down the block. Detectives stopped the car; defendant displayed a NYPD civilian identification card, which indicated that he was a police department employee. The detectives arrested defendant; incident to defendant’s arrest, the detectives recovered more than 500 milligrams of cocaine from defendant’s pocket. Soon after, Rivera emerged from her building, and the police arrested her as well. -4- A search of the Wallace Avenue apartment conducted pursuant to a warrant revealed almost a full kilo of cocaine in a shoe box in Rivera’s apartment as well as almost $5000 in cash. The brick-like kilo of cocaine was missing a piece of cocaine that had been cut from the corner. The weight and purity of the cocaine missing from the kilo was consistent with that of the cocaine recovered from defendant’s pocket. Subsequently, officers arrested other members of Rivera’s drug-dealing organization. By New York County Indictment Number 3618/08, filed on July 11, 2008, defendant was charged, along with co-defendants Lillian Rivera, William Rivera, Aaron Gonder, Candido Gonzalez, and Joseph Ramirez, with Conspiracy in the Second Degree (Penal Law § 105.15) (Count 1), Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.21[1]) (Count 41), Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]) (Count 42), and, by himself, with Criminal Possession of a Controlled Substance in the Fifth Degree (Penal Law § 220.06[5]) (Count 43) (over 500 milligrams). Prior to trial, defendant moved to suppress, among other things, the physical evidence recovered from him incident to his arrest. In a written opinion dated June 16, 2008, Justice Gregory Carro summarily denied defendant’s suppression motion, finding that he had failed to allege sufficient facts to warrant a hearing. On April 6, 2010, defendant and Lillian Rivera proceeded to a joint trial before Justice Carro and a jury. On May 13, 2010, defendant was convicted of Criminal -5- Possession of a Controlled Substance in the Fifth Degree and acquitted of the other charges. On June 23, 2010, defendant was sentenced as set forth above.2 On appeal to the Appellate Division, defendant asserted that he was deprived of his right to counsel when the trial court supposedly discharged a sworn juror in defense counsel’s absence. Defendant also argued that the trial court incorrectly denied his suppression motion without a hearing, and that the trial court violated his right to a public trial when it purportedly failed to consider reasonable alternatives to courtroom closure during the testimony of two undercover officers. 2 The jury convicted Lillian Rivera of Conspiracy in the Second Degree, five counts of Criminal Sale of a Controlled Substance in the Third Degree, and Criminal Possession of a Controlled Substance in the First Degree. On June 23, 2010, Rivera was sentenced to an aggregate prison term of 20 years with five years of post-release supervision. Rivera’s appeal is scheduled to be heard during the June 2014 term of the Appellate Division, First Department. Mario Bracero was convicted, upon his plea of guilty, of conspiracy and various counts of drug sale. On August 4, 2010, he was sentenced to a determinate, aggregate prison term of 13 years, to be followed by three years of post-release supervision. Bracero’s conviction was affirmed on appeal. People v. Bracero, 99 A.D.3d 635 (1st Dept. 2012), leave denied, 20 N.Y.3d 1009 (2013). William Rivera pled guilty to conspiracy and certain drug sale counts and was sentenced on December 9, 2009, to a determinate prison term of eight years. Aaron Gonder pled guilty to second-degree drug possession and was sentenced on February 24, 2010, to a determinate prison term of ten years. Joseph Ramirez pled guilty to second-degree drug possession and on October 13, 2009, he was sentenced to a determinate prison term of 12 years. Candido Gonzalez pled guilty to attempted drug sale, and on October 20, 2009, he was sentenced to a determinate prison term of four and one- half years. According to the records of the District Attorney’s Office, Ramirez, Gonzalez, Gonder, and William Rivera did not file notices of appeal. Finally, Lillian Rivera’s supplier, Julian Silva, was convicted, after a separate jury trial, of various counts of drug sale and drug possession and was sentenced to an aggregate prison term of 24 years and three years of post-release supervision. On October 11, 2012, the Appellate Division affirmed the conviction. People v. Silva, 99 A.D.3d 522 (1st Dept. 2012). This Court granted leave to appeal. 21 N.Y.3d 1020 (2013). That appeal is fully briefed and is awaiting oral argument. -6- On June 20, 2013, the Appellate Division unanimously affirmed the judgment. In so doing, the court held that defendant had failed to preserve his claim that his attorney’s “momentary absence” from a “brief discussion” about whether to replace an ill juror amounted to a right-to-counsel violation. The court reasoned that defendant had had “ample opportunity” to advance that claim since counsel was present when the discharge happened in open court. In the alternative, the court rejected defendant’s claim on the merits, and determined that: First, there had been an off-the-record discussion of the juror issue that included all counsel including defendant’s counsel. Second, when the matter was discussed on the record, the codefendant’s counsel, who had spoken with defendant’s counsel, conveyed to the court the defendants’ joint position in favor of retaining the juror if possible, and the absence of any “conflict” between the defendants on this single issue is manifest. Finally, defendant’s counsel arrived in the courtroom before the ill juror was actually replaced by an alternate, and did not request to be heard any further. Based on all of these factors, we find no violation of defendant’s rights to counsel or to a fair trial People v. Garay, 107 A.D.3d 580, 581 (1st Dept. 2013) (A4-7). The Appellate Division also found that defendant failed to preserve his claim concerning the court’s decision to close the courtroom during the undercover officers’ testimony, and again declined to reach it in the interest of justice. In any event, the court rejected the claim on the merits. The Appellate Division determined that since the trial court “narrowly tailored” the closure to the portion of the trial implicating the overriding safety interest, namely, during the testimony of the -7- undercovers, and because the trial court made an exception for defendant’s family members to attend, the trial court implicitly determined that no lesser alternative would protect the articulated interest (A6-7). Finally, the Appellate Division found that the trial court had properly denied defendant a hearing on his suppression motion because defendant’s allegations in his motion had failed to raise a legal basis for suppression. More specifically, the court determined that the People had provided “detailed information” to 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.” The court concluded that, in the face of that detailed information, defendant’s unelaborated assertions that he had not “‘engaged in any criminal conduct’” and was “‘dropping off a family member’” at the time of his arrest were insufficient to require a hearing (A4-7). On appeal to this Court, defendant renews the same three claims. -8- POINT I DEFENDANT WAS NOT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN THE COURT REPLACED AN ILL JUROR WITH AN ALTERNATE JUROR (Answering Defendant’s Brief, pp. 17-24). On appeal, defendant argues that he is entitled to a new trial on the ground that he was deprived of his right to counsel when the trial court purportedly discharged a sworn juror and seated an alternate juror in the absence of defendant’s lawyer (Defendant’s Brief at 17-24). Defendant’s claim is unavailing. The record shows that the court informed the prosecutor and the lawyers for both defendant and Rivera in an off-the-record conference that the juror in question was too sick to come to court that day, and that the judge planned to replace him with an alternate juror. Moreover, although defendant’s lawyer was not in court when the judge made a record of the off-the-record proceedings, co-counsel for defendant had conferred with co-counsel, who voiced a joint objection to the discharge. And, importantly, defendant’s lawyer was present in court when the judge actually discharged the juror and seated the alternate juror; not surprisingly, counsel voiced no additional protest at all to the substitution. Under the circumstances here, the court committed no substantive error and if defendant’s lawyer disagreed at the time, it was incumbent upon him to say so when the discharge occurred in his presence in order to preserve any right-to-counsel claim for appellate review. -9- A. Before the court’s morning session on May 3, 2010, a juror contacted the court and stated that he was ill with a stomach virus and would not be able to come to court that day. Soon after, the judge had an off-the-record discussion with the lawyers for defendant and Lillian Rivera and the prosecutor, and advised them that the juror was ill, that he could not come to court even if the trial were adjourned until that afternoon, and that there was “no way” he could come to court that day (A188-189). Shortly thereafter, the court convened the parties to make a record of the off- the-record discussion. The transcript reveals that the prosecutor and Rivera’s lawyer were there, and evidently both defendants, but neither defendant’s lawyer nor the jury were present. Justice Carro asked, apparently of co-counsel, whether he was “standing in” for defendant’s lawyer and whether defendant’s attorney was “not here.” After a court officer advised the judge that defendant’s lawyer was not present, the judge noted that this was the second time that defendant’s counsel had “absented himself” from the proceedings. Justice Carro explained that he had spoken “off the record” with all the lawyers, including counsel for defendant, and had advised them that one of the jurors had called in sick, that he had stated that he could not come to court if the trial were adjourned until the afternoon, and that “in no way” could he “make it [to court] today.” Given these circumstances, the judge stated that he was replacing the ill juror with the next alternate juror (A188-189). -10- Rivera’s lawyer stated that he had conferred with defendant’s lawyer and that he “believe[d]” defendant’s lawyer “is agreeing” to the objection in opposition to the court’s discharge of the ill juror, and asked that the court postpone the trial for one day in the hope that the sick juror might return (A189-191). Rivera’s counsel asserted that since, according to the court, the juror was sick with a stomach virus, there was no reason to believe that he could not come to court the next day or that he was either unwilling or unable to serve (A191-192). Rivera’s lawyer also argued that discharging the ill juror would leave only one remaining alternate juror, and that one of two black jurors would now be replaced by a white juror, when there were “not that many minorities” on the jury (A189-191). Despite defendants’ protests, the court restated its intention to replace the ill juror with an alternate juror. The judge emphasized that a number of jurors had made clear that they could not attend the trial on Friday, that the court had previously told the jurors when the case would end, and that when the court had informed the jurors that the trial would last instead into the next week, some of them were “taken aback a little bit by that” (A191). At that point, defendant’s attorney entered the courtroom (A192). Then, with both counsel and both defendants present, the jurors entered the courtroom. The court directed the next alternate juror to take the seat of the ill juror. Defendant’s lawyer voiced no additional objection to the replacement and, having been late to court, did not inquire whether anything had happened in his absence. -11- Immediately thereafter, the prosecutor called her next witness (A191-192).3 On appeal to the Appellate Division, defendant insisted that he had been deprived of counsel in the context of the juror replacement. The Appellate Division concluded that the claim was unpreserved because counsel “had ample opportunity” to protest the procedure had he thought it infringed on defendant’s right to counsel. After declining to reach the issue in the interest of justice, the court went on to reject it on the merits as follows: First, there had been an off-the-record discussion of the juror issue that included all counsel including defendant’s counsel. Second, when the matter was discussed on the record, the codefendant’s counsel, who had spoken with defendant’s counsel, conveyed to the court the defendants’ joint position in favor of retaining the juror if possible, and the absence of any “conflict” between the defendants on this single issue is manifest. Finally, defendant’s counsel arrived in the courtroom before the ill juror was actually replaced by an alternate, and did not request to be heard any further. Based on all of these factors, we find no violation of defendant’s rights to counsel or to a fair trial People v. Garay, (A4-7). 3 Prior to the arrival of defendant’s lawyer in court, the judge commented outside the jury’s presence that he wished he could “replace” defendant’s lawyer but that, “unfortunately,” he could not do so (A191). Shortly thereafter, the court advised defendant’s attorney, again outside the presence of the jury, that if he delayed the trial again, it would “cost him.” When counsel asked if he had, in fact, delayed the proceedings, the judge advised him that he had done so “twice” (A194-195). -12- B. On appeal, defendant, for good reason, takes no issue with the court’s sound decision to replace the ill juror with an alternate juror. Criminal Procedure Law Section 270.35 provides, in pertinent part, that if after the jury has been sworn and before the rendition of a verdict, a juror is unable to continue serving by reason of illness, the juror may be discharged and an alternate juror may be substituted in his place. The same statutory provision requires that the court make a “reasonably thorough inquiry” concerning the juror’s illness, afford the parties the opportunity to be heard, and attempt to ascertain when the juror will appear in court. If the court determines that there is no reasonable likelihood that the sick juror will appear in court within two hours of the time when the trial is scheduled to resume, the court may presume the juror is unavailable for continued service and may discharge the juror. See CPL 270.35(2)(a). One of the primary reasons CPL 270.35(2)(a) was amended was to address reversals of convictions in cases such as People v. Page, 72 N.Y.2d 69 (1988) where, over the defendants’ objections, trial courts had replaced ill jurors with alternate jurors. The amendment of § 270.35(2) was a result of “chronic delays Page had engendered in the trial of criminal cases.” These delays had greatly inconvenienced jurors and witnesses and acted as a “drag on the efficiency of our overburdened trial courts.” Governor’s Mem 148R approving S.7929, ch 630, 1996 NY Legis. Ann at 450. Although agreeing that a defendant had a right to be “tried by jurors in whose -13- selection the defendant has had a voice,” the Governor’s Memorandum states that the statute at issue here was amended because that right was “simply” “not implicated when a trial judge replaces a missing juror with an alternate juror,” especially since defendants actually enjoy a “greater voice” in the selection of alternate jurors than “regular” jurors because defendants always have two peremptory challenges for each alternate but have less than that for each “regular” juror. Id. Based on this statutory provision, the judge’s decision to discharge the ill juror was unassailable. The trial was set to resume that morning, and the juror telephoned the court to report that he was too ill to attend the day’s session. The court ascertained that even if it delayed the proceeding until the afternoon, the juror still would be unable to appear in court. The judge was particularly concerned about a delay for a variety of reasons: a number of jurors had stated that they could not attend the trial on Friday, the judge had previously told the jurors when the case would end, and that when the judge had informed the jurors that the trial would last instead into the next week, some of them were “taken aback a little bit by that” (A191). Indeed, this was precisely the situation the legislature envisioned when it elected to give the court authority to replace a sick juror with one of the alternate jurors if the delay would be more than two hours from the time the trial was scheduled to resume. See People v. Jeanty, 94 N.Y.2d 507, 513-518 (2000); People v. Arrington, 14 A.D.3d 442 (1st Dept. 2005); People v. Davis, 6 A.D.3d 1168 (4th Dept. 2004). -14- As noted, defendant takes no issue with the replacement of the unavailable juror with an alternate. Instead, defendant asserts that the court interfered with defendant’s right to counsel when it “held a hearing and discharged a sworn and seated juror while [defendant’s] trial counsel was physically absent from the courtroom” (Defendant’s Brief at 19)(emphasis in original). Of course, that is not what happened, but, as a threshold matter, defendant has failed to preserve his counsel claim, placing it beyond this Court’s powers of review. People v. Medina, 18 N.Y.3d 98 (2011); People v. Gray, 86 N.Y.2d 10 (1995). To preserve an issue for appellate review, counsel must register an objection and apprise the court of the grounds upon which the objection is based “at the time” of the allegedly erroneous ruling “or at any subsequent time when the court had an opportunity of effectively changing the same.” CPL 470.05(2); People v. Cantave, 21 N.Y.3d 374, 378 (2013). Although defendant complains that he could not have objected because he was “not there” (Defendant’s Brief at 23), the record proves him wrong. After all, counsel was unquestionably a party to the court’s off-the-record discussion with the lawyers about the sick juror and the court’s decision to discharge him and replace him with an alternate juror. Indeed, it is patent that the judge conveyed his decision to the lawyers during that off-the-record colloquy. When the case resumed in open court, outside the jury’s presence, defendant’s lawyer was not there but had evidently communicated his protest to the replacement through co- counsel, who voiced it on the record. Finally, defendant’s lawyer was present -15- moments later when the jury reconvened in the courtroom and the judge proceeded to replace the ill juror with the next alternate juror. Plainly, if counsel had not been a party to all of the facts surrounding the discharge issue or of the judge’s decision to replace the juror, or had feared that something significant had happened during his self-imposed absence, it was incumbent upon him to raise the deprivation-of-counsel issue when the replacement occurred in open court, in counsel’s presence. This Court’s decision in People v. Narayan, 54 N.Y.2d 106 (1981), illustrates the point. In Narayan, the court ordered two recesses during defendant’s trial testimony on June 14, 1976 and directed the defendant’s attorney and defendant not to speak with one another about the defendant’s testimony during the recesses. The defendant responded that he understood the court’s instruction; defense counsel was silent and registered no protest to the court’s directions. The following day, on June 15th, after the court refused counsel’s request to confer with the defendant during cross-examination, counsel protested the court’s ruling on the ground that it interfered with the defendant’s right to access to his lawyer. Although the court initially denied counsel’s request, it subsequently reversed its ruling and permitted the defendant and his lawyer to confer. On appeal, the Appellate Division agreed with the defendant, that the trial court’s instructions to the defendant and counsel had deprived him of counsel. This Court reversed and reinstated the conviction, holding that, under the circumstances, there was no justification -- even on a right-to-counsel issue -- to depart from the -16- requirement that trial court error “must be brought to the court’s attention by protest timely made, at least where counsel acting on defendant’s behalf is present and available to register a protest” and “where the error if called to the court’s attention is readily susceptible to effective remedy.” Narayan, 54 N.Y.2d at 112. The Court determined that counsel was present on June 14th, when the trial court first imposed its prohibition against consultation between the attorney and the defendant, and that an objection voiced by counsel at that time might well have resulted in a change of the court’s ruling and total avoidance of any claim of interference with the defendant’s right to counsel. Instead, “for all that appeared,” counsel found the directives given that day unobjectionable and not adverse to the defendant’s interests. The Court further found that, given counsel’s acquiescence when correction was possible, the defendant could not, in disregard of the statutory requirement of timely protest, later secure appellate review of what transpired when counsel “stood mute.” The protest lodged by counsel the following day was simply too late. Narayan, 54 N.Y.2d at 113. The same analysis applies here. Defendant’s lawyer was fully apprised by the court of the situation with the sick juror. He conveyed his objection to the discharge through co-counsel. And he was present when the court effectuated the replacement in court. If counsel thought that any aspect of those circumstances impinged on defendant’s right to counsel, he should have raised that protest at a time when the court had the ability to address the matter. The absence of a contemporaneous protest on deprivation-of-counsel grounds renders the claim utterly unpreserved, CPL -17- 470.05(2); Narayan, 54 N.Y.2d at 112-113, and beyond the review powers of this Court. CPL 470.35. Defendant asserts in reliance on People v. Strothers, 87 A.D.3d 431 (1st Dept. 2011) and People v. Margan, 157 A.D.2d 64 (2d Dept. 1990), that he did not have to preserve his claim that he was deprived of counsel (Defendant’s Brief at 21-23). However, as the Appellate Division found, defendant’s reliance on those cases is misplaced (A4). In both Strothers, and Margan, the respective trial judges conducted portions of a suppression hearing and the trial itself in the absence of the defendants’ lawyers. Here, in contrast, not only did counsel have the opportunity to express his position regarding replacing the ill juror during his off-the-record discussion with the court, but he actually conveyed his protest through co-counsel so that his views were placed on the record during his momentary absence from the courtroom. And, counsel was present in court with defendant when the juror was replaced (A192; 1292). If counsel concluded that any aspect of those circumstances interfered with his ability to represent his client, it was incumbent on him to say so. Narayan, 54 N.Y.2d at 112-113. 4 4 In so far as there is any confusion in the record regarding matters that transpired with regard to the juror replacement issue, the blame for that must be laid at defendant’s door. Defendant correctly asserts that a right to counsel claim may be raised for the first time on appeal (Defendant’s Brief at 22-23). But in order to do that, he must ensure a sufficient record to allow appellate review of the claim. People v. Kinchen, 60 N.Y.2d 772 (1983). -18- In any event, as the Appellate Division properly determined, Garay, (A3-5), defendant was not remotely deprived of his right to counsel. To be sure, “[t]he right of any defendant ... to stand before a court with counsel at his side to safeguard both his substantive and procedural rights is inviolable and fundamental to our form of justice.” People v. Settles, 46 N.Y.2d 154, 161 (1978); see People v. Felder, 47 N.Y.2d 287, 295–296 (1979). The right to counsel for an accused person is constitutionally guaranteed at trial and at other critical proceedings, such as a pretrial suppression hearing. See People v. Carracedo, 214 A.D.2d 404 (1st Dept. 1995). But here, there was no infringement of defendant’s right to counsel because counsel was fully apprised of the circumstances surrounding the sick juror, lodged a protest, and was present for the discharge. Counsel’s momentary absence from the court immediately preceding the juror’s discharge simply did not amount to a deprivation of defendant’s right to counsel. Although defendant’s lawyer was not present in the courtroom when the proceedings commenced that morning, Justice Carro made it clear that he had “spoke[n] off the record” with defendant’s counsel, as well as with Rivera’s lawyer, and with the prosecutor. The judge stated that he had advised each of them that one of the jurors had telephoned the court that he was ill and that “in no way” could he come to court that day (A188-189). The court added that it had asked the juror whether, if the trial were delayed until the afternoon, he could come to court; the juror responded that he could not attend (A188-189). -19- At that off-the-record conference, defendant, through his lawyer, had an opportunity to be heard prior to the juror’s discharge. Moreover, when the parties spoke on the record, Rivera’s counsel conveyed to the court the defendants’ “joint position” in favor of retaining the juror if possible (A5). More specifically, co-counsel stated that he had also spoken to defendant’s lawyer, and objected on behalf of both defendants to the court’s replacing the juror on the grounds that the court should wait until the next day to see if the ill juror could come to court, and because the juror’s discharge left only one black juror and one remaining alternate juror (A188-193). That on-the-record colloquy made it abundantly clear that defendant’s counsel had been apprised of the situation concerning the ill juror and the court’s decision to replace him with an alternate juror, and had conveyed his protest to co-counsel prior to the start of the court session that morning. Moreover, any doubt that defense counsel knew in advance of the court’s decision to order the replacement and had nothing further to add was made crystal clear when defendant’s lawyer arrived in court and said nothing when the judge substituted the alternate juror in counsel’s presence. As the Appellate Division found, counsel arrived in the courtroom “before the ill juror was actually replaced” and “did not request to be heard further.” Garay, (A5). Thus, the record establishes beyond debate that counsel was fully aware of the court’s decision to replace the sick juror with one of the alternate jurors. Indeed, it strains all credulity that counsel would have stood by in the face of a juror replacement about which he had not been fully -20- informed. Considering all that, coupled with the fact that the court’s decision to effect the substitution was fully warranted, defendant’s efforts to parlay the situation into per se reversible error should be rejected out of hand. Still, defendant insists that he was deprived of counsel because his lawyer was absent for the on-the-record colloquy during which co-counsel lodged a joint objection on behalf of both Rivera and defendant. But that argument elevates form over substance. Of course, as noted, counsel was not in court when the court made a record regarding the ill juror. But counsel was present for the off-the-record discussion about the issue and was present when the ill juror was actually replaced. Since, as also noted, it is clear that counsel meaningfully represented defendant regarding the court’s replacement of the ill juror, what defendant appears to mean is that he was unable to confer with counsel at the precise moment when the court made its on-the-record remarks about replacing the ill juror. However, it was certainly within the ambit of counsel’s legal responsibilities to decide the defense response to the court’s decision to replace the ill juror and to communicate the grounds for that protest through co-counsel. See People v. Ferguson, 67 N.Y.2d 383 (1986); see also, People v. Rodriguez, 95 N.Y.2d 497, 502 (2000). It is hard to imagine that defendant could have offered any meaningful input to the discourse, much less that he would have changed the court’s imminently sound decision to replace the juror. And, defendant was free to confer with his counsel shortly thereafter when his lawyer arrived at court. In short, there is no rational view -21- of the manner in which events unfolded that suggest any interference with defendant’s right to counsel. Defendant asserts that this case is akin to People v. Johnson, 189 A.D.2d 318 (4th Dept. 1993), where a sworn juror was discharged during jury selection because of a family emergency (Defendant’s Brief at 22). Defendant’s reliance on Johnson is misplaced. Here, as already stated, counsel represented defendant’s interests regarding the juror’s replacement and his momentary absence from court did not diminish counsel’s representation. But this case is unlike Johnson for another reason. Defendant and his lawyer unquestionably had important roles to play in the selection of the jury. But, although a defendant had a right to be “tried by jurors in whose selection the defendant has had a voice,” the statute at issue here was amended because that right was “simply” “not implicated when a trial judge replaces a missing juror with an alternate juror,” especially since defendants actually enjoy a “greater voice” in the selection of alternate jurors than “regular” jurors because defendants always have two peremptory challenges for each alternate but have less than that for each “regular” juror. Governor's Mem 148R approving S.7929, ch 630, 1996 NY Legis Ann at 450. Defendant also launches a series of attacks on the Appellate Division decision. But defendant’s claims can be easily dispatched. For instance, defendant asserts that the Appellate Division misapplied “settled New York law” by “excusing” counsel’s absence during the court’s brief on-the-record memorialization of the issue on the -22- ground that co-counsel “conveyed to the court the defendants’ joint position in favor of retaining the juror if possible” (A5). As defendant sees it, he did not consent to joint representation with his co-defendant or to co-counsel’s attorney appearing on his behalf (Defendant’s Brief at 20-21). But that argument is a lesson in misdirection. The record made plain that defendant’s lawyer, who was present for the discussion with the court about the ill juror, had asked co-counsel to voice a joint protest. Under those circumstances, co-counsel was merely communicating what counsel, his colleague, had told him to say with regard to a decision by the court. Nor was there any actual conflict. The court relied on the statutory presumption in discharging the ill juror, and the protests by both attorneys were perfectly synced. Indeed, since defendant never raised any conflict claim below, he has failed to preserve an issue of law for this Court’s review. CPL 470.05(2). Defendant also disapproves of the Appellate Division’s reliance on Hunte v. Keane, No. CV 97-1879 (RR) 1999 WL 754273 (E.D.N.Y. Aug. 24, 1999), a habeas corpus decision reviewing a New York state conviction affirmed by the Second Department. In Hunte, the defendant’s lawyer was absent from a pre-trial court conference at which the defense was permitted to suggest questions to be asked by the court of a confidential informant; by prearrangement, co-counsel had appeared for counsel. In denying the defendant’s habeas petition, the district court agreed with the Second Department that the stand-in of co-counsel at the conference did not infringe on the defendant’s right to counsel. The Appellate Division’s reliance on the -23- case was sensible and it certainly did not apply the wrong standard in rejecting defendant’s claim. The Appellate Division analyzed defendant’s claim in reliance on the New York State statute. Hunte served to punctuate the point that counsel’s decision to allow co-counsel to voice a joint protest did not implicate either state or federal constitutional concerns in this narrow context. Defendant also claims that the Appellate Division “misapplied” New York law because it characterized the on-the-record colloquy during which counsel was absent as a “brief discussion” when in defendant’s view, it was actually a “juror discharge hearing” (Defendant’s Brief at 20). First, CPL 270.35(2) does not require a hearing, per se, before a sick juror can be discharged. The statute requires only that, before the judge discharges a juror who is unavailable, he provide counsel with an opportunity to be heard. Counsel had that opportunity during the off-the-record colloquy, during which the court plainly decided to replace the ill juror with the alternate. Thereafter, counsel ensured that co-counsel lodged a joint protest to the replacement of the juror, and he was present in court at the time of the replacement, a circumstance that afforded counsel another opportunity to protest, if he deemed it necessary. In short, whether the on-the-record exchange is dubbed a hearing or a -24- brief discussion, counsel had the opportunity for the input to which he was entitled under CPL 270.35(2).5 In sum, defendant has not preserved his claim that he was deprived of counsel. In any event, since counsel was fully informed of the circumstances regarding the ill juror, conveyed his objection through co-counsel, and was actually present in court when the court replaced the ill juror with an alternate juror, he was afforded an opportunity to be heard and defendant’s constitutional right to an attorney was not violated. POINT II THE COURT PROPERLY ORDERED A PARTIAL CLOSURE OF THE COURTROOM BASED ON THE EVIDENCE ADDUCED AT THE HINTON HEARING (Answering Defendant’s Brief, Point II, pp. 24-31). Prior to trial, the court conducted a Hinton hearing, at the close of which it granted a partial closure of the courtroom during the testimony of two undercover 5 Defendant insinuates that the court intentionally conducted the on-the-record discussion in counsel’s absence because the court was “irritated” with counsel’s chronic lateness (Defendant’s Brief at 19). Defendant points to nothing in the record to support his speculative theory. In any event, counsel was unquestionably a party to the other discussion about the ill juror and was present when the ill juror was replaced with the alternate juror. To the extent that counsel’s tardiness to court may have made the judge understandably impatient, counsel, nonetheless, was afforded an opportunity to be heard and, in fact, conveyed his objections via co-counsel. -25- officers. The court also permitted defendant to bring to the court’s attention any family members or friends who wished to be present during the partial closure. On appeal, defendant does not challenge either the adequacy of the People’s showing in support of the closure order or the scope of the closure order. Defendant does argue, however, that his Sixth Amendment right to a public trial was violated because, in defendant’s view, the trial court failed to consider “all reasonable alternatives” to closing the courtroom. Defendant concedes that this Court’s recent decision in People v. Echevarria, 21 N.Y.3d 1 (2013) (Defendant’s Brief at 24-31), a decision handed down by this Court a year ago, squarely defeats his bid for relief. Undaunted, defendant asks this Court to overrule Echevarria.6 Suffice it to say, defendant offers no reason for this Court to revisit its holding in Echevarria. A. The Hinton Hearing and the Court’s Decision On April 5, 2010, prior to jury selection, Justice Carro conducted a Hinton hearing. At the hearing, Undercover 43 testified that he had worked as an undercover police officer since 2004, that he worked in the area from 59th Street to the Bronx, and that, at the time of the hearing, he continued to work “every week” in “uptown Manhattan,” “river to river.” The officer stated that in the first few months of 2010, he had already made over 18 undercover drug purchases in that area, and that he had 6 The defendants in the companion cases to Echevarria, Martin Johnson and Andrew Moss, each unsuccessfully sought a writ of certiorari from the Supreme Court. See Johnson v. New York, 134 S.Ct. 823 (2013); Moss v. New York, 134 S.Ct. 823 (2013). -26- over a dozen cases from northern Manhattan that were currently pending in Manhattan Supreme Court (A130-131). In addition, Undercover 43 detailed that he had worked on short-term and long-term narcotics investigations, and that he had “lost subjects,” where the police had not yet apprehended an individual from whom the officer had purchased drugs (A131-132). Although the undercover had not received any threats in connection with the investigation into the Dyckman Houses drug selling enterprise, Undercover 43 had been threatened twice, had been “patted down” for weapons, and had been involved in a few physical altercations related to his undercover status (A132-133, 135, 148). Whenever Undercover 43 visited the courthouse or the District Attorney’s Office, he had to use his police identification to enter the buildings and did not go through metal detectors. Nonetheless, he took public transportation or an unmarked police car to get to the buildings, because he did not want to be “noticed” as a police officer. In the past, Undercover 43 had at times disguised his appearance when visiting the courthouse or the District Attorney’s Office by putting up his hood, by wearing sunglasses, or by changing his hairstyle. At the courthouse, he either used the judges’ elevators or, after he reached the appropriate floor by passenger elevators, court officers escorted him to a private waiting room and then allowed him to use the judges’ elevators to leave. The undercover officer had seen subjects of his investigations, out on bail, in the streets in Upper Manhattan but not near the courthouse (A132-133, 136-139). On one occasion during a short-term operation, a -27- subject had approached Undercover 43 and tried to expose him as a police officer (A133). As an undercover, the officer had never testified in an open courtroom, but had testified where members of a defendant’s family were present (A149-150). Undercover 43 would feel “uneasy” testifying with members of the public or members of defendant’s family present in court because of the nature of his job and the “safety concerns” that he had. The officer preferred to have the courtroom closed so that his “name” did not become “exposed” and so members of the public would not see him testify (A134-135,148-149). Undercover 96, who had been assigned as an undercover for three years, worked in her undercover capacity in “all of northern Manhattan,” “[p]retty much uptown, Harlem,” and would return to that area as an undercover sometime during the week after her testimony. Undercover 96 had been involved in one long-term investigation, and had five pending cases, mostly originating in the Harlem area of northern Manhattan. The officer also had one or two cases pending in the vicinity of the Dyckman Houses and had about four lost subjects in northern Manhattan (A152- 155). Undercover 96 had been threatened once or twice in connection with her undercover work. While working in her undercover capacity, Undercover 96 dealt with armed individuals and had been patted down for weapons and recording devices (A152-155, 159-160). Undercover 96 had not been threatened in this case by any -28- defendant, or by any friends or family members of any defendant. In the past, she had seen subjects of her investigations when she had visited the courthouse and the District Attorney’s Office. On one occasion, when the officer was working undercover on an unrelated case, a subject of one of her investigations informed a drug dealer that Undercover 96 was a police officer and told him not to sell to the officer. After that, the undercover continued to work as an undercover officer, but stayed away from that area for a couple of weeks (A154-157, 160-161, 165). When Undercover 96 visited the courthouse or the District Attorney’s Office, she never wore her police uniform, and she arrived in an unmarked car, entered the courthouse or the District Attorney’s Office through a side or rear entrance, and waited either in the prosecutor’s office or in a waiting room (A156-157). When visiting the District Attorney’s Office, she showed her police identification and used the passenger elevators. She also used the courthouse passenger elevator when she testified in court but she spoke to a court officer, who escorted her to a private elevator and to a waiting room (A161-164). Undercover 96, who had never testified in her undercover capacity in an open courtroom, preferred that the courtroom be closed to friends and family members of defendant when she testified. In her view, an open courtroom put at risk her safety and her undercover status (A156-157, 166). Following the undercovers’ testimony, the prosecutor requested that the courtroom be closed for the testimony of both undercover officers. The prosecutor argued that both officers continued to work in their undercover capacities in northern -29- Manhattan in the very area of the crimes charged in the indictment, both had several open cases, some of which had lost subjects, and both had been threatened in the past as a result of their undercover status. After emphasizing that both officers took precautions to protect their respective identities when they entered the courthouse, the prosecutor asserted that the officers had testified that they would feel concerned if the courtroom were open to the public and that open-court testimony would compromise their safety and their effectiveness as undercover officers (A167-168). Relying on the arguments of co-counsel, defendant countered that the officers did not routinely take sufficient precautions to protect their respective identities when they came to court and that Undercover 96 did not truly fear for her safety because she continued to work as an undercover in the same area even after she had been threatened (A168-173). Defendant’s lawyer also requested that defendant’s family be allowed to attend the trial (A173). At the close of the parties’ argument, the court ordered a partial courtroom closure during the testimony of the undercover officers. After crediting the testimony of the officers, the judge found that they were both “clearly active undercovers,” in that each officer worked in, and would soon return to work in, an undercover capacity in Upper Manhattan. The court also found that both officers had open cases, that both had been threatened during the course of their undercover work, and that both took precautions, such as using a side entrance to the courthouse or the District -30- Attorney’s Office, or not wearing a uniform, to protect their identities when they came to court (A174-175). Finally, the court observed that defendant had not met his “burden on family members or significant others,” presumably referring to defendant’s failure to specify individuals whom he would like to attend, in order to allow the court to rule on whether those individuals posed a specific threat to the officers. Nonetheless, the judge decided to allow defendant’s family members to attend all portions of the trial, including the testimony of the undercover officers, provided defendant gave the prosecutor a list of names of family members and their relationship to defendant. The court also determined to allow both defendants’ “significant others” to attend all portions of the trial provided they gave their the names and dates of birth in order to afford the People an opportunity to determine if any had been involved in the narcotics trade (A174-177). At trial, immediately before closing the courtroom for the testimony of Undercover Officer 43, the judge revisited the issue and said that he “gather[ed]” by defendants’ “silence” that there was no one here from their families, but added that counsel should alert the court if anyone arrived and the court would “let them in” (A184.1). Defendant identifies no portion of the record where he sought to admit any friend or family member or that he tendered any list in support of it. -31- B. The relevant legal principles are well settled. A criminal defendant has a constitutional and statutory right to a public trial (U.S. Const., VI Amendment; N.Y. Civil Rights Law § 12; Judiciary Law § 4). However, while the right to a public trial is “fundamental,” it is not “absolute.” People v. Echevarria, 21 N.Y.3d at 11. A courtroom may be closed to the public in order to protect, among other things the “government’s interest in inhibiting disclosure of sensitive information.” Presley v. Georgia, 558 U.S. 209, 213 (2010) (quoting Waller v. Georgia, 467 U.S. 39, 45 [1984]). A court’s exercise of that discretion comports with Sixth Amendment requirements when the closure order meets a four-part standard that the United States Supreme Court set out in Waller v. Georgia, 467 U.S. at 45. Specifically: [T]he party seeking to close the [proceeding] must [1] advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to [closure], and [4] it must make findings adequate to support the closure 467 U.S. at 48; see also People v. Echevarria, 21 N.Y.3d at 11; People v. Ramos, 90 N.Y.2d 490, 497 (1997). With regard to the first prong, it is well established that protecting the safety and effectiveness of undercover police officers constitutes an overriding interest that can warrant the closure of a courtroom. See, e.g., People v. Echevarria, 21 N.Y.3d at 12; People v. Ramos, 90 N.Y.2d at 498; People v. Martinez, 82 N.Y.2d 436, 443 -32- (1993). The court may thus order closure of the courtroom during the testimony of undercover officers upon a showing that there is a “substantial probability that the officers’ safety and effectiveness would be prejudiced by their testimony in open court.” People v. Cummings, 271 A.D.2d 305, 306 (1st Dept. 2000); see also Ramos, 90 N.Y.2d at 498; Martinez, 82 N.Y.2d at 443-44; People v. Hinton, 31 N.Y.2d 71, 75- 76 (1972). A simple claim that the officer’s safety is at risk is not enough to justify closure. There must be a specific link between the officer’s safety concerns and open court testimony in the particular case. People v. Echevarria, 21 N.Y.3d at 13; People v. Ramos, 90 N.Y.2d at 498; see generally People v. Jones, 47 N.Y.2d 409, 414-415 (1979). Where, for example, the People show that an undercover officer continues to engage in undercover work in the vicinity of the charged drug sale, has pending cases from that area, including cases in which suspects remain at large, has been threatened, and takes precautions to conceal his identity when going to court to testify, the People have made a sufficient showing justifying closure of the courtroom during the undercover officer’s testimony. See, e.g., People v. Echevarria, 21 N.Y.3d at 13-14; People v. Ramos, 90 N.Y.2d at 498. And, in order to satisfy prong two of Waller, the closure must be no broader than necessary to protect that interest. People v. Echevarria, 21 N.Y.3d at 11. Prong three of Waller requires the trial court to consider reasonable alternatives to closure. As this Court held in Ramos and affirmed in Echevarria, where the trial -33- court has made a post-hearing particularized finding that open-court testimony by an undercover officer would create a genuine risk to his physical safety, and the court has limited the closure to only the portion of the proceedings directly implicating the overriding interest, it is fair to imply that the trial court has concluded that no lesser alternative would have adequately protected the officer’s safety. Under these circumstances, the court has discharged its prong-three duty to consider reasonable alternatives. People v. Echevarria, 21 N.Y.3d at 19. Moreover, even the portions of the proceedings that are closed for the undercovers’ testimony are only partially closed where the court agrees to allow a defendant’s family to attend. Id. Thus, under those circumstances, it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the safety and efficacy of the undercover officers. People v. Echevarria, 21 N.Y.3d at 19; People v. Ramos, 90 N.Y.2d at 503-504. On appeal, defendant does not dispute that there was a substantial probability that the undercover officers’ safety and effectiveness would be prejudiced by their open-court testimony or that, under Echevarria, the tailored closure order supported the inference that the court considered and rejected alternatives to closure. Rather, he urges the Court to overrule Echevarria and announce a rule requiring that trial courts explicitly “consider reasonable alternatives on-the-record before closing the courtroom in criminal trials” (Defendant’s Brief at 27). -34- It bears note that defendant never suggested at trial that the court had abdicated its responsibility to determine whether there were reasonable alternatives to closure. To be sure, that responsibility rests with the trial court and the defendant is not required to suggest any particular alternative to the closure order. But where, as here, the closure order is tailored to apply only to the testimony of the undercover officers, the order is supported by an ample showing of an overriding interest in the safety and efficacy of the undercover officers, and the judge allows defendant’s family and friends to attend, the court has implicitly determined that no lesser remedies are available. If defendant believed that it was incumbent on the court to explicitly reject alternatives to closure, he should have said so at trial, as the Appellate Division held. (A6); People v. Johnson, 983 N.Y.S.2d 531 (1st Dept. 2014). In any event, Echevarria was correctly decided and defendant offers no basis for this Court to overturn it. First, it comes as no surprise that defendant does not challenge the trial court’s decision to grant a limited courtroom closure during the undercovers’ trial testimony. Undercovers 43 and 96 provided detailed and credible testimony establishing that testifying in open court would jeopardize both their safety and their continued effectiveness as undercovers. Specifically, the undercovers testified that, if their respective identities as police officers became known, they feared for their safety and they would no longer be useful as undercovers (A134-135; 156-157, 166). Moreover, the undercovers testified that they usually worked in their undercover capacity in northern Manhattan, and that they would return to work within a week or two in that -35- same neighborhood (A130-131, 152-155), the area where they had purchased drugs from Rivera and her associates. The officers elaborated that they had cases from the very area where they had made cocaine purchases relevant to the indictment charges and where there were lost or unapprehended subjects. They added that they had cases currently pending in the courthouse where arrests were made near to the area where defendant and Rivera were charged with having sold and possessed drugs in the matter on trial (A130-131, 152-155). Significantly, the undercovers testified that they had been threatened while working as undercovers. For example, Undercover 43 had been threatened and involved in altercations in his undercover capacity. And, Undercover 96 testified that when she was working undercover, a subject in one of her previous investigations had informed a drug dealer that she was a police officer (A132-133, 153-155, 159-160, 165). As proof that their concerns were genuine, the officers testified that they took significant steps to protect their identities. For example, when they came to court, they waited in private rooms before testifying, and took unmarked cars or public transportation to court (A132-133, 136-146, 156-157). Undercover 43 altered his appearance by pulling up his hood, changing his hair style, or wearing sunglasses (A132-133). Undercover 96 never wore her uniform, and entered the courthouse and the District Attorney’s office through rear or side entrances (A161-164). Viewing these factors together, the undercovers’ hearing testimony thus fully supported the trial court’s finding of an overriding interest in favor of closing the courtroom during -36- their trial testimony. See People v. Jones, 96 N.Y.2d 213, 220 (2001). Based on this showing, as the Appellate Division determined, People v. Garay, (A6), the trial court narrowly tailored the courtroom closure to the portion of the proceedings implicating the overriding safety interests, namely, during the testimony of the two undercover officers. At the same time, since the trial court made particularized findings after the Hinton hearing that requiring the undercover officers to testify in open court would create a genuine risk to their physical safety and limited closure to the undercovers’ testimony, the portion of the proceedings that directly implicated the overriding interest of the undercovers’ safety, the trial court implicitly concluded that no lesser alternative would have adequately protected the officers’ safety. Accordingly, the court discharged its prong-three duty to consider reasonable alternatives. People v. Echevarria, 21 N.Y.3d at 19. As noted, defendant faults the trial court as to the third Waller prong for failing to explicitly consider any alternatives to closure (Defendant’s Brief at 26-31). Defendant makes that claim notwithstanding that his family was allowed to attend, if he so chose, and he, himself, proposed no other alternatives. However, as defendant recognizes (Defendant’s Brief at 26-29), that claim is put to rest by this Court’s decision in People v. Echevarria, 21 N.Y.3d at 1. In Echevarria and its companion cases, Moss and Johnson, the trial courts made particularized findings at the close of the Hinton hearings that requiring the undercover officers to testify in open court -37- would create a genuine risk to their physical safety and continued efficacy. The hearing courts limited the closure orders to the undercover officers’ testimony. Moreover, in all three cases, the Court acknowledged an exception for the defendants’ family members to attend.7 On those records, the Court determined that it was “fair to imply” that the trial courts concluded that no lesser alternative would have adequately protected the officers’ safety and, as such, had fully complied with its obligations under Presley v. Georgia. People v. Echevarria, 21 N.Y.3d at 19. Here, as in Echevarria, since the record amply supported the partial closure limited to the undercovers’ testimony, and the trial court made an exception for defendant’s family members to attend, it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protest the articulated interest. Echevarria, 21 N.Y.3d at 19. Defendant’s claim to the contrary should be rejected out of hand. Defendant suggests that in all circumstances, a trial court must explicitly identify on the record at least some additional alternatives, even if only to reject them (Defendant’s Brief at 27-28). But, as noted, as this Court observed, Presley “nowhere states that it is incumbent on trial courts, regardless of the circumstances, to engage in a verbal on-the-record review of all potential alternatives before opting for a limited 7 In Moss and Johnson, the court allowed the defendants’ immediate family to attend. In Echevarria, the court told the defendant to inform the court if any family member wished to attend. -38- closure.” People v. Echevarria, 21 N.Y.3d at 18; see also Ayala v. Speckard, 131 F.3d 62, 71 (2d Cir. 1997) (en banc), cert. denied, 524 U.S. 958 (1998) (after trial court has assessed closure application and ordered partial closure as “an alternative to complete closure,” additional consideration of “further alternatives to the alternative deemed appropriate” is not required). Moreover, a rule requiring explicit discussion of rejected alternatives would have untoward consequences, as both this Court and the Second Circuit have recognized. Some of the alternatives proposed by defendant (see Defendant’s Brief at 27), Echevarria, 21 N.Y.3d at 24, such as posting a court officer outside the courtroom to screen visitors, or having an undercover officer testify behind a screen, could place a defendant’s fair trial rights at substantial risk. See Ayala v. Speckard, 131 F.3d at 71-72 (noting the “hazard” of such alternatives); see also Echevarria, 21 N.Y.3d at 15 (majority) and at 25 (Lippman, C.J., dissenting) (acknowledging that posting a court officer at the door, as suggested by defendant, “may entail its own problems”). The rule advanced by defendant would “place an impractical – if not impossible – burden on trial courts.” Ramos, 90 N.Y.2d at 505. Allowing a defendant to remain silent while a trial court implements a thoughtfully limited closure, and later “conjure up [on appeal] yet another method . . . that the court overlooked” or failed to describe with sufficient detail on the record, would create significant incentives for gamesmanship. Id. -39- In further support of his bid to convince this Court to overrule Echevarria, defendant asserts that Waller, Presley, and other jurisdictions have decided Waller prong-three issues differently. Defendant argues that decisions in other state and federal courts, all but one of which pre-date this Court’s decision in Echevarria, have interpreted Presley to require on-the-record consideration of reasonable alternatives to closure, and that this Court should revisit this issue because these decisions purportedly demonstrate a flaw in Echevarria’s reasoning (see collected cases in Defendant’s Brief at 28-29). But this Court carefully considered and rejected those types of arguments in Echevarria. Indeed, there is no doubt that this Court, in its decision in Echevarria, understood and applied the standard set forth in Waller and Presley. In Echevarria, the Court correctly recognized the core teaching of Presley: that “prong three [of Waller] obliges trial courts to consider reasonable alternatives to closure, even where the parties themselves do not bring those alternatives to the attention of the court.” 21 N.Y.3d at 18; see Presley, 558 U.S. at 214 (“trial courts are required to consider alternatives to closure even when they are not offered by the parties”). Explaining that Waller itself held that “trial judges ‘must consider reasonable alternatives to closing the proceeding’” (21 N.Y.3d at 15 [quoting Waller, 467 U.S. at 48] [emphasis in Echevarria]), the Court reasoned that “Presley did not break new ground” and that Presley “nowhere states that it is incumbent on trial courts, regardless of the circumstances, to engage in a verbal on-the-record review of all potential alternatives -40- before opting for a limited closure.” 21 N.Y.3d at 18. Hence, in Echevarria, this Court properly adhered to that portion of Ramos that held that the absence of explicit discussions regarding alternatives is not fatal under prong three where the record in a buy-and-bust case otherwise suffices to establish the need to close a particular portion of the proceeding.8 In sum, the trial court’s partial closure of the courtroom was proper. Since the trial court made particularized findings after a hearing that closure was justified to protect the safety and efficacy of the undercover officers, and limited that closure to the undercovers’ testimony, the trial court implicitly considered reasonable alternatives to closure. 8 Although defendant cites to a number of state and federal cases to support his argument (Defendant’s Brief at 28), none of those cases involved undercover testimony. Indeed, in those cases, the trial courts closed the courtroom for parts of the trial without, or with only limited, discussion of any of the Waller factors, and the trial courts did not focus specifically on prong three. Thus, those cases have no bearing on the reasoning in Echevaria, which was based on, among other things, a careful review of controlling Supreme Court precedent. -41- POINT III THE TRIAL COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR A HEARING BASED ON HIS MOTION TO SUPPRESS PHYSICAL EVIDENCE (Answering Defendant’s Brief, Point III, pp. 31-36). On appeal, defendant argues that the trial court erred in summarily denying his motion to suppress the cocaine recovered from him after his arrest. According to defendant “in light of the limited information available at the time he moved for suppression,” defendant made sufficient factual assertions in his motion papers to warrant a hearing (Defendant’s Brief at 31). Defendant’s claim is meritless. A. From the summer of 2007 to March 2008, members of the New York City Police Department conducted a narcotics investigation into large-scale cocaine selling at the Dyckman Housing Project in Upper Manhattan. As the result of long-term surveillance techniques, undercover drug purchases, and wiretapped conversations of suspects, the police identified Lillian Rivera as the head of the drug organization and defendant as her driver. On March 7, 2008, intercepted telephone conversations showed that Rivera had negotiated with Julian Silva to purchase a kilogram of cocaine later that day. Soon after, defendant drove Rivera to Manhattan where she purchased a kilogram of cocaine and then drove her back to her Bronx apartment building after the drug purchase. At that point, based on his involvement in the drug-selling -42- conspiracy, defendant was arrested on March 7, 2008 soon after he emerged from Rivera’s Bronx apartment building. By a six-page Criminal Court complaint dated March 8, 2008, defendant was charged, along with other individuals, with Criminal Possession of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the Third Degree, and Conspiracy in the Second Degree. In the sworn complaint, Detective Salvador stated that defendant, Lillian Rivera, and other co-defendants, were part of a drug-selling conspiracy, and detailed several undercover drug sales that had involved Lillian Rivera and other co-defendants from August 29, 2007 to March 7, 2008. Salvador also averred that he was informed by Detective Liam McLoughlin that on March 7, 2008, McLoughlin observed “another person” driving Lillian Rivera, and that Rivera left the car carrying a rectangular package and entered the apartment building located at 2181 Wallace Avenue. Salvador stated further that when he stopped the car in which Rivera had been a passenger, he found that defendant was the driver of that car, that upon being stopped, defendant displayed a New York City Police identification card, and that Salvador was informed by Detective John Hourican that Hourican recovered a quantity of cocaine from defendant’s pants’ pocket (A7-12). Salvador further swore that he recovered that day from a shoebox inside 2181 Wallace Avenue #1M a substance that, based on his prior experience, was a kilogram of cocaine (A12). -43- At defendant’s arraignment in Criminal Court on March 8, 2008, the prosecutor alleged that defendant was a member of Rivera’s drug-selling organization. The prosecutor explained that defendant worked as a mechanic for the New York City Police Department, but that his role in Rivera’s drug-selling organization was as her driver and bodyguard. After specifying that defendant was serving as Rivera’s driver “last night,” referring to the time of the recovery of a kilo of cocaine, the prosecutor went on to note that a number of cars, used by defendant to chauffeur Rivera during the police investigation, were registered to defendant (A16-17). The prosecutor also detailed that the cocaine that was recovered in defendant’s pocket at the time of his arrest “appeared to match exactly” a piece that seemed to have been cut from the kilogram of cocaine recovered inside 2181 Wallace Avenue (A17). In the subsequent indictment, defendant was charged, along with Rivera and numerous co-defendants, with engaging in the sale and possession of cocaine in the vicinity of the Dyckman Houses in New York and at 2181 Wallace Avenue in the Bronx in that they obtained and transported quantities of cocaine, possessed, processed, packaged, stored and maintained quantities of cocaine, communicated with each other in order to engage in cocaine sales, and distributed and sold cocaine (A31- 57). In particular, in the section of the indictment that described overt acts committed in furtherance of the conspiracy, it was alleged that on March 7, 2008, defendant operated a motor vehicle in the vicinity of 2181 Wallace Avenue in which Rivera was a passenger; that defendant, in the vicinity of 2181 Wallace Avenue, -44- displayed a New York City Police Department identification card when a police officer approached him; and that defendant, in the vicinity of 2181 Wallace Avenue, possessed a quantity of cocaine and also possessed an additional quantity of cocaine that weighed approximately one kilogram (see A33-36). Defendant was also charged in the 40th count of the indictment along with Rivera and other co-defendants with Criminal Possession of a Controlled Substance in the First Degree for his March 7, 2008 possession of the kilo of cocaine; in the 41st count with Criminal Possession of a Controlled Substance in the Third Degree, along with Rivera and the same co-defendants, for the same March 7, 2008 possession of the kilo of cocaine with the intent to sell it (A55-56); and in the 42nd count with Criminal Possession of a Controlled Substance in the Fifth Degree for his March 7, 2008 possession of over 500 milligrams of cocaine (A56), recovered from defendant’s person. In an April 17, 2008 letter, the prosecutor advised defendant’s counsel that various items of property had been recovered from defendant and/or from co- defendants to be tried jointly, including cash, cocaine and packaging material, cellular telephones, and a key and a pair of scissors, both with cocaine residue (A58-59). As is relevant here, armed with that information, and his own personal knowledge of the circumstances of March 7, 2008, defendant sought suppression of “property allegedly recovered from defendant” in an omnibus motion dated May 20, 2008. In his papers, defendant asserted that he did not consent to the search of his -45- car or of his person, and that the police lacked a warrant to arrest or to search him. Defendant also alleged that he was “not engaged in any criminal conduct,” that “[n]o contraband was in plain view,” that he was “stopped pursuant to dropping off a family member” in New York County, that the police had “no basis” to seize any property from him, and that they lacked probable cause to search him (A78-79). In a response dated May 28, 2008, the prosecutor opposed defendant’s suppression motion on the ground that it lacked “‘sworn allegations of fact’ that are necessary to warrant a suppression hearing” (A84). In a decision dated June 16, 2008, Justice Gregory Carro, relying on People v. Mendoza, 82 N.Y.2d 415 (1993), summarily denied defendant’s motion to suppress physical evidence because defendant’s motion papers did not present a factual issue to be resolved at a hearing (A88). The Appellate Division found that the trial court was correct in summarily denying defendant’s suppression motion. The court reasoned that the People had provided “detailed information” apprising defendant that his arrest was based on his “complicity” in a “drug-selling operation” over the course of a “long-term police investigation,” and on defendant’s act of “driving a person who had allegedly conducted a series of drug sales.” In light of those specific allegations of prior criminal wrongdoing, the Appellate Division concluded that defendant’s mere assertion that at the time of his arrest he had not “engaged in any criminal conduct,” -46- and that he was “‘dropping off a family member’” were insufficient to raise any factual dispute requiring a hearing. People v. Garay, (A5-6). B. On appeal to this Court, defendant renews his complaint about the summary denial of his suppression motion. But, as detailed in Section A, supra, and as the Appellate Division correctly held, Garay, (A5-6), there was a large amount of information available to defendant from several sources: the felony complaint, the indictment, the March 8, 2008 arraignment minutes, and the April 17, 2008 prosecutor’s letter. Taken together, these various sources provided a chronology of events that plainly established probable cause for defendant’s arrest. Utilizing these sources, defendant had ample opportunity to raise an issue of fact in his suppression motion that required a hearing for its resolution, and to refute with sufficient factual specificity, the People’s allegations of probable cause. Since he failed to do so, his claim should be rejected out of hand. It is undisputed that evidence obtained as the fruit of an illegal search or seizure must be suppressed. See Mapp v. Ohio, 367 U.S. 643, 655 (1961); Dunaway v. New York, 442 U.S. 200 (1979). However, suppression hearings based on such Fourth Amendment claims are not “automatic” or “available for the asking by boilerplate allegations.” People v. Bryant, 8 N.Y.3d 530, 533 (2007); People v. Mendoza, 82 N.Y.2d 415, 422 (1993); People v. Gruden, 42 N.Y.2d 214, 217 (1977). A defendant is entitled to a hearing only where he has demonstrated that there is a genuine factual -47- dispute regarding whether he was unlawfully searched or seized. See People v. Burton, 6 N.Y.3d 584, 587 (2006). Specifically, to obtain a hearing on a motion to suppress evidence as the fruit of an illegal search or seizure, the defendant must set forth a legal ground for suppression. He must also advance sworn allegations of fact supporting these grounds, which raise a dispute on a material point that must be resolved before the court can decide the legal issue. See CPL § 710.60(1); Bryant, 8 N.Y.3d at 533; Burton, 6 N.Y.3d at 587; Mendoza, 82 N.Y.2d at 426, 428-429; Gruden, 42 N.Y.2d at 215. Next, in determining whether a defendant’s suppression papers contain sufficient allegations of fact to warrant a hearing, the court must consider “(1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information.” People v. Lopez, 5 N.Y.3d 753 (2005); Mendoza, 82 N.Y.2d at 426-427. This standard applies to all aspects of the motion. People v. Ramirez-Portoreal, 88 N.Y.2d 99, 109 (1996); People v. Rodriguez, 69 N.Y.2d 159, 161 (1987); People v. Burton, 6 N.Y.3d 584, 587 (2006). The context of the motion includes, for instance, the allegations of fact in the Criminal Court complaint, supporting depositions, the VDF, the Bill of Particulars, and the People’s response to defendant’s motions. See People v. France, 12 N.Y.3d 790, 791 (2009); Mendoza, 82 N.Y.2d at 427-428; People v. Cartwright, 65 A.D.3d 973 (1st Dept. 2009); People v. Smallwood, 28 A.D.3d 238, 239 (1st Dept. 2006). As a general rule, the “face of -48- defendant’s motion” must “lay out a factual scenario which, if credited, would [warrant] suppression.” Mendoza, 82 N.Y.2d at 432. Thus, “it is incumbent upon the pleader, where possible, to provide objective facts from which the court can make independent factual determinations.” Id. at 427. When a defendant is able to deny the People’s specific factual allegations but fails to do so, that failure may be deemed a concession. See Mendoza, 82 N.Y.2d at 428; Gruden, 42 N.Y.2d at 218. The facts that the defendant must allege or deny will depend upon the context of the case. For example, where probable cause is based on the defendant’s “furtive behavior” at the time of the arrest, the defendant must allege facts concerning his conduct prior to the seizure to place the basis of the arrest in dispute. Burton, 6 N.Y.3d at 590. In such a case, a defendant “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 and discovered contraband in the process.” Id. (internal quotation omitted). In contrast, in a buy-and-bust situation, probable cause is generated by the drug transaction itself, and thus an allegation that defendant was merely standing on the street at the time of arrest does not frame a factual issue for the court’s determination. In such a case, a mere statement that the defendant did nothing wrong is insufficient. Mendoza, 82 N.Y.2d at 427-428. Instead, the defendant must affirmatively deny that he participated in the specific crime at issue, Mendoza, 82 N.Y.2d at 428-29, or allege facts supporting another ground for suppression. -49- Applying these rules, Justice Carro correctly determined that no hearing was warranted on defendant’s Fourth Amendment claim. By the time defendant filed his motion for a Mapp hearing, the People had set forth a wealth of information before the motion court establishing the lawful basis for the officers’ arrest of defendant; all of the information had been conveyed to defendant; and defendant proffered nothing in support of his motion other than conclusory denials or assertions regarding his conduct at the time of arrest that were largely beside the point. Although defendant asserts that the available information was “sparse,” “unspecific,” and that the People did not explain how defendant was complicit in the drug conspiracy (Defendant’s Brief at 32, 35), the multitude of facts detailed in the complaint, in the March 8, 2008 arraignment minutes, and in the overt acts set forth in the indictment, clearly showed defendant’s complicity in the drug-possession crime and thus, alerted defendant to the theory of probable cause underlying defendant’s arrest.9 9 Defendant asserts that the Appellate Division misapplied the relevant standard and misapprehended the record. As defendant sees it, the Appellate Division wrongly required that he respond to allegations against his co-defendant in order to obtain a hearing (Defendant’s Brief at 31, 35). Defendant is demonstrably wrong. In finding that defendant’s allegations failed to raise a legal basis for suppression, the Appellate Division relied on this Court’s opinion in People v. Burton, 6 N.Y.3d 584, 587 (2006). In Burton, this Court, citing CPL 710.60(1) and (3)(b), held that a pretrial suppression motion “must state the ground or grounds of the motion and must contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds,” that a trial court is required to grant a hearing if the defendant “raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue” of whether evidence was obtained in a constitutionally permissible manner, and that such a request may be summarily denied if the motion papers do not provide a sufficient legal basis for suppression, or where “[t]he sworn allegations of fact do not as a matter of law support the ground alleged.” Burton, 6 N.Y.3d (Continued…) -50- More specifically, it was plain from the various filings by the People that defendant was arrested because the detectives observed him criminally abetting Lillian Rivera, who they knew was running a drug enterprise out of the Dyckman Houses and who was in possession of a kilogram of cocaine on the evening of March 7, 2008 in connection with her large-scale cocaine selling operation. The prelude set forth in the felony complaint generally described the drug-selling conspiracy. It alleged that during the “period of the conspiracy,” defendants were “engaged in the sale and possession of cocaine” in the vicinity of the “Dyckman Housing Project” in Manhattan and at “2181 Wallace Avenue” in the Bronx (A8), which was the location close to where defendant was arrested. In that regard, the complaint alleged that Rivera was a “boss” or “owner” of the drug organization and detailed Rivera’s involvement in cocaine sales on several dates in November and December 2007 (A8- 10). In addition, the prosecutor explained defendant’s particular role in the drug- selling conspiracy when she detailed during his March 8, 2008 arraignment that although defendant worked as a mechanic for the New York City Police Department, his role in Rivera’s drug-selling organization was as her driver and bodyguard. In that regard, the prosecutor emphasized that Rivera had been observed riding as a passenger in a number of cars that were registered to defendant (A16-17). ______________________ (…Continued) at 587. As noted, defendant had to set forth allegations that created a factual dispute as to his own conduct in order to obtain a hearing. In short, defendant provides no support for his claim that the Appellate Division misapplied the law or misunderstood the facts. -51- Additional allegations from the March 8, 2008 arraignment minutes and the complaint detailed that defendant was serving as Rivera’s driver “last night,” referring to the events of the previous evening pertaining to the recovery of a kilo of cocaine from the Wallace Avenue apartment, and that on March 7, 2008, Detective McLoughlin observed Rivera leave a car and carry a rectangular object into 2181 Wallace Avenue, a target address listed in the complaint (A11, 16-17). Based on these allegations, it was easily inferred that the object that Rivera carried was alleged to have been cocaine. That was especially the case when that information was taken together with Detective Salvador’s statement in the complaint that he had recovered a kilogram of cocaine from inside 2181 Wallace Avenue on March 7, 2008 (A11), the address Rivera had entered in possession of the rectangular package. Notably, too, the prosecutor averred during defendant’s March 8, 2008 arraignment that the quantity of cocaine recovered from defendant’s pocket at the time of his arrest “appeared to match exactly” a piece that apparently had been cut from the kilogram of cocaine recovered inside Rivera’s Wallace Avenue apartment (A17). This information supported an inference that Rivera had paid defendant for his help in transporting her to the location where she purchased the cocaine by giving him a piece of the kilo of cocaine. That assertion further implicated defendant in the joint possession with Rivera of the kilogram of cocaine recovered from the Wallace Avenue apartment. -52- By the same token, the indictment made it perfectly clear that defendant had served as Rivera’s driver just before the kilogram of cocaine was recovered from Rivera’s apartment on March 7 (A33-36). Against the background of Rivera’s involvement in multiple drug sales alleged in the complaint, the overt acts in the indictment specifically charged that Rivera possessed a kilogram of cocaine on March 7, 2008 at 2181 Wallace Avenue, and that, on the same date, defendant “operated a motor vehicle in the vicinity of 2181 Wallace Avenue” in which Rivera was a passenger (A35-36). The overt act section went on to allege that on March 7, 2008, defendant displayed a New York City Police Department identification card when approached by an officer, and that defendant possessed a “quantity of cocaine” as well as “approximately one kilogram of cocaine” (A35-36). Taken together, these allegations made clear that defendant had aided Rivera by driving her and by attempting to use his affiliation with the police department to ward off police action. Thus, the felony complaint, the overt acts alleged in the indictment, and the prosecutor’s detailed explanation at defendant’s arraignment regarding Rivera’s cocaine possession and defendant’s role as Rivera’s driver, both generally and on the night of his arrest, fully apprised defendant of the People’s theory of probable cause: defendant’s role in the drug conspiracy as Rivera’s driver and his complicity with Rivera in the joint possession of a kilogram of cocaine on March 7, 2008. Under these circumstances, it was incumbent upon defendant to refute specifically the People’s allegations of probable cause in order to obtain a hearing on -53- his motion to suppress the cocaine recovered from his person incident to his arrest. After all, in addition to those specific factual allegations made by the People, defendant also had firsthand knowledge of the events leading up to his arrest and the search of his person. Yet despite all the information at his disposal, defendant offered only the most generic allegations of “fact” in his suppression motion. In that regard, defendant alleged only that there was no probable cause to arrest him, that at the time of his arrest defendant was “not engaged in any criminal conduct,” that “[n]o contraband was in plain view,” that defendant was “stopped pursuant to dropping off a family member” in New York County, and that the police officer had “no basis” to seize any property from defendant (A78-79). But in the face of the People’s pleading and on-the-record disclosures and all the information within defendant’s personal knowledge, those bald conclusory allegations did not suffice to present a factual issue to be resolved at a hearing. Defendant’s simple denial that he was not engaged in criminal conduct at the time that he was apprehended did not raise any issue of fact that needed to be resolved at a hearing. Indeed, it was distinctly beside the point. At the time that defendant was taken into custody, there was no allegation that he was in the midst of committing a crime. It was defendant’s role in the conspiracy as Rivera’s driver and his conduct in transporting her at the time of the purchase of the kilo of cocaine and all the other attendant circumstances of the police investigation, that provided probable cause to arrest him. -54- Nor, as the Appellate Division found (A4-5), did defendant’s allegation that he was “dropping off a family member in the County of New York” at the time of his arrest create an issue of fact that warranted a hearing. Despite defendant’s current insistence that he had “no reason” to deny he had driven Rivera that day (Defendant’s Brief at 34), defendant took care not to identify Rivera as his “family member” or friend or to expand on where he had dropped off his so-called “family member.” But even accepting the allegation at face value, it did nothing to counter the People’s detailed allegations of fact set forth in the complaint, arraignment minutes, and the indictment that provided probable cause to believe that defendant had been complicit in Rivera’s drug enterprise, and her possession of a kilogram of cocaine on March 7. Rivera was defendant’s passenger at the time of their joint possession of a kilogram of cocaine, and she was observed leaving defendant’s car with a rectangular object that was alleged to have been cocaine (A15-30, 35-36). In the face of those detailed allegations, defendant could not rest on conclusory denials. Rather, he had to affirmatively deny that he and Rivera had engaged in a drug sale or drug possession while defendant transported Rivera in the evening of March 7, 2008. Put differently, defendant’s claim that he had been dropping off a family member could have been true but did not address the People’s theory as conveyed through all their filings that someone in defendant’s car possessed a large quantity of cocaine while he was driving the vehicle. Thus, although defendant now alleges that the Appellate Division’s holding based on Mendoza held him to a standard “no defendant can meet” -55- (Defendant’s Brief at 35-36), defendant’s allegation regarding dropping off a family member simply did not raise a factual dispute that needed to be resolved at a suppression hearing.10 In short, despite all the information about the case available to defendant, his generic allegations that he had not “engaged in any criminal conduct,” that “no contraband was in plain view,” that he was dropping off a family member, that the officer had “no basis” to seize property from defendant, and that there was no probable cause to arrest him (A78-79) were plainly deficient to warrant a hearing on any issue of fact. See People v. Martinez, 82 N.Y.2d at 430-431 (companion case to Mendoza)(trial court properly denied the defendant a suppression hearing since his motion papers were “devoid of any factual information” as to his activities at the relevant time; defendant did not specifically deny that he sold drugs to the undercover). In sum, the trial court acted correctly when it summarily denied defendant’s Fourth Amendment claim. Since the uncontested information before the trial court 10 Defendant’s reliance on People v. Bryant, 8 N.Y.3d 530, 534 (2007) (Defendant’s Brief at 35-36) is misplaced. In Bryant, the Court of Appeals reversed the lower court’s denial of a suppression hearing where the People had refused to provide the defendant with the name of the individual who had identified the defendant in a photograph, a refusal that impacted the defendant’s ability to allege sufficient facts to obtain a Mapp hearing. In contrast, here, the People provided defendant with ample information on which to fashion sufficient allegations, had he chosen to do so. -56- established a legal basis for the police to arrest defendant, and that the cocaine was seized pursuant to a lawful arrest, there was no basis for a hearing. CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov By: Patricia Curran Assistant District Attorney Of Counsel HILARY HASSLER PATRICIA CURRAN Assistant District Attorneys Of Counsel May 8, 2014