The People, Respondent,v.Benny Garay, Appellant.BriefN.Y.February 10, 2015To be Argued by: ADAM J. BERNSTEIN (Time Requested: 20 Minutes) APL-2013-00355 New York County Indictment Nos. 3618N/08 and 1153/08 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – BENNY GARAY, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ADAM J. BERNSTEIN JAMES H. BOROD Of Counsel ANDREW C. FINE Of Counsel PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, New York 10019 Tel.: (212) 373-3000 Fax: (212) 757-3990 – and – SCOTT A. ROSENBERG THE LEGAL AID SOCIETY 199 Water Street New York, New York 10038 Tel.: (212) 577-3440 Fax: (646) 616-4440 Attorneys for Defendant-Appellant June 9, 2014 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT .............................................................................. 1 ARGUMENT ............................................................................................................ 2 I. THE TRIAL COURT VIOLATED MR. GARAY’S RIGHT TO COUNSEL BY HOLDING A HEARING AND DISCHARGING A SWORN, SEATED JUROR WHILE MR. GARAY’S TRIAL COUNSEL WAS PHYSICALLY ABSENT ................................................. 2 A. The Record Clearly Establishes That The Trial Court Conducted A Juror Discharge Hearing While Mr. Garay’s Trial Counsel Was Not Present ..................................................................... 3 B. The Violation Of Mr. Garay’s Right To Counsel Requires Reversal ................................................................................................ 4 C. This Issue Is Properly Before This Court ........................................... 10 II. THE TRIAL COURT VIOLATED MR. GARAY’S SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL BY FAILING TO SUA SPONTE CONSIDER REASONABLE ALTERNATIVES TO COURTROOM CLOSURE ......................................................................... 13 III. THE TRIAL COURT ERRED BY SUMMARILY DENYING MR. GARAY’S REQUEST FOR A SUPPRESSION HEARING ...................... 15 A. Mr. Garay Was Not Required To Anticipate The People’s Trial Case In Order To Obtain A Pre-Trial Suppression Hearing .............. 16 B. Mr. Garay Was Not Required To Respond To Allegations Against Co-Defendants Or Allegations Not Within His Personal Knowledge In Order To Obtain A Suppression Hearing ................... 18 CONCLUSION ....................................................................................................... 20 TABLE OF AUTHORITIES Page(s) Cases Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) ................................................................................. 15 Hunte v. Keane, No. CV 97-1879 (RR), 1999 WL 754273 (E.D.N.Y. Aug. 24, 1999) ............................................................................................................... 9, 10 Jones v. Vaco, 126 F.3d 408 (2d Cir. 1997) ................................................................................. 6 Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012) ........................................................... 14 People v. Ahmed, 66 N.Y.2d 307 (1985) ......................................................................................... 10 People v. Allah, 80 N.Y.2d 396 (1992) ........................................................................................... 9 People v. Anderson, 70 N.Y.2d 729 (1987) ........................................................................................... 8 People v. Bing, 76 N.Y.2d 331 (1990) ......................................................................................... 10 People v. Dukes, 8 N.Y.3d 952 (2007) ............................................................................................. 8 People v. Echevarria, 21 N.Y.3d 1 (2013) ............................................................................... 1, 2, 13, 15 People v. Evans, 79 N.Y.2d 407 (1992) ..................................................................................... 5, 12 People v. Favor, 82 N.Y.2d 254 (1993) ..................................................................................... 5, 12 People v. Jeanty, 94 N.Y.2d 507 (2000) ........................................................................................... 7 People v. Kinchen, 60 N.Y.2d 772 (1983) ......................................................................................... 12 People v. Lopez, 16 N.Y.3d 375 (2011) ........................................................................................... 1 People v. Lopez, 263 A.D.2d 434 (1st Dep’t 1999) ....................................................................... 15 People v. Margan, 157 A.D.2d 64 (2d Dep’t 1990) .................................................................... 10, 11 People v. Martin, 16 N.Y.3d 607 (2011) ................................................................................... 14, 15 People v. McLean, 15 N.Y.3d 117 (2010) ......................................................................................... 10 People v. Mendoza, 82 N.Y.2d 415 (1993) ............................................................................... 2, 15, 19 People v. Mezon, 80 N.Y.2d 155 (1992) ......................................................................................... 12 People v. Narayan, 54 N.Y.2d 106 (1981) ......................................................................................... 11 People v. Otigho, 113 A.D.3d 637 (2d Dep’t 2014) .......................................................................... 5 People v. Ramos, 99 N.Y.2d 27 (2002) ............................................................................................. 9 People v. Rosario, 9 N.Y.2d 286 (1961) ........................................................................................... 14 People v. Strothers, 87 A.D.3d 431 (1st Dep’t 2011) ......................................................................... 11 People v. Ventura, 113 A.D.3d 443 (1st Dep’t 2014) ......................................................................... 5 People v. Wardlaw, 6 N.Y.3d 556 (2006) ......................................................................................... 6, 8 Presley v. Georgia, 558 U.S. 209 (2010) .....................................................................................passim State v. Wise, 176 Wash.2d 1 (2012) ......................................................................................... 14 Waller v. Georgia, 467 U.S. 39 (1984) .............................................................................................. 14 Other Authorities C.P.L. § 270.35 .......................................................................................................... 7 C.P.L. § 470.05 ........................................................................................................ 11 1 PRELIMINARY STATEMENT The Trial Court below conducted a hearing and discharged a sworn, seated juror while defendant-appellant Benny Garay’s trial counsel was physically absent from the courtroom. The record is clear on this point, and the People do not seriously dispute it. Instead, the People seek to overcome a clear violation that occurred on-the-record by speculating about what may have happened off the record. As a fallback, the People argue that the Trial Court committed a purportedly harmless violation of Mr. Garay’s “cherished and valuable” right to counsel. People v. Lopez, 16 N.Y.3d 375, 380 (2011). The People’s contentions are meritless. They cannot overcome a clear violation with rank speculation, and they cannot render harmless what New York courts have concluded is per se reversible: violations of the right to counsel at a critical stage of the trial. Finally, the People argue that Mr. Garay’s right to counsel claim is not preserved, but that position is precluded by clear precedent and common sense: an attorney cannot object to a hearing from which he is physically absent. The People similarly fail to refute Mr. Garay’s other claims of error. First, the People argue that this Court’s decision in People v. Echevarria, 21 N.Y.3d 1 (2013), faithfully interpreted Presley v. Georgia, 558 U.S. 209 (2010), but the People’s position ignores the weight of authority and the plain text of Presley, which requires trial courts to consider reasonable alternatives to courtroom closure and to make “articulated . . . [and] specific” findings supporting 2 closure. 558 U.S. at 215 (internal citation and quotation marks omitted). The Trial Court’s failure to do so below presents an opportunity for this Court to revisit Echevarria, and return New York to the constitutional mainstream. Second, the People argue that the Trial Court properly denied Mr. Garay’s request for a suppression hearing. This argument ignores the limited information available to Mr. Garay at the time he moved for a hearing and attempts to turn the governing standard on its head. The People’s interpretation of People v. Mendoza, 82 N.Y.2d 415 (1993), would require Mr. Garay to respond to trial theories not available to Mr. Garay at the time he moved for a suppression hearing, evidence obtained after Mr. Garay’s arrest, allegations against co-defendants, and inferences that the People’s experienced appellate counsel draw with the benefit of a full record. That is not what the law requires, nor should it be. ARGUMENT I. THE TRIAL COURT VIOLATED MR. GARAY’S RIGHT TO COUNSEL BY HOLDING A HEARING AND DISCHARGING A SWORN, SEATED JUROR WHILE MR. GARAY’S TRIAL COUNSEL WAS PHYSICALLY ABSENT The People acknowledge, as they must, that the Trial Court conducted an on-the-record hearing, after which it discharged a sworn and seated juror, and that Mr. Garay’s trial counsel was physically absent from that hearing. Nevertheless, the People argue (1) that Mr. Garay’s right to counsel was not violated, (2) that any deprivation was harmless, and (3) that, in any event, the claim is unpreserved. (Br. for Respondent (“People’s Br.”) 13–24.) The People’s arguments — some 3 raised for the first time before this Court — are unavailing, and do not excuse the constitutional violation raised by Mr. Garay. A. The Record Clearly Establishes That The Trial Court Conducted A Juror Discharge Hearing While Mr. Garay’s Trial Counsel Was Not Present As set forth in Mr. Garay’s opening brief, the Trial Court conducted a hearing and discharged a sworn, seated juror while Mr. Garay’s trial counsel was physically absent from the courtroom. (See Br. for Def.-Appellant (“Def.’s Br.”) 13–15, 17–22.) In summary, on May 3, 2010, the Trial Court began the hearing by acknowledging that Mr. Garay’s trial counsel was not present. (A-188 (“All parties are present except for [Mr. Garay’s trial counsel] who has absented himself again. This is the second time.”).) The Trial Court then referenced an off-the- record discussion with counsel: As I indicated when I spoke off the record with [Mr. Garay’s trial counsel], and as well as [co-defendant’s trial counsel] and the prosecution, one of the jurors has called in sick, [Juror Number Ten]. He says in no way can he make it in today. I asked him, you know, if we put off the morning, can you come in this afternoon and he said no. So, I’m going to replace [Juror Number Ten] with the next alternate up . . . . (A-188–A-189.) At that point, counsel for Mr. Garay’s co-defendant stated, “I spoke to [Mr. Garay’s trial counsel], I believe he is agreeing to the objection we’re making to replacing the juror.” (A-189.) The Trial Court then heard arguments from co-defendant’s counsel, rejected them, and announced its ruling: “for a number of reasons, I am going to replace this juror.” (A-189–A-191.) The Trial 4 Court continued: “I wish we can [sic] replace [Mr. Garay’s trial counsel]. Unfortunately we can’t.” (A-191–A-192.)1 Mr. Garay’s trial counsel then entered the courtroom simultaneously with the jury. (A-192.) The Trial Court, without referencing the just-concluded hearing, said to one of the alternates, “you’re going to take that seat right over there, number ten. That will be your seat for the rest of the trial.” (Id.) B. The Violation Of Mr. Garay’s Right To Counsel Requires Reversal Mr. Garay established in his opening brief that his right to counsel was violated when the Trial Court held a hearing and discharged a sworn, seated juror while Mr. Garay’s trial counsel was physically absent from the courtroom. (Def.’s Br. 17–22.) The People’s efforts to downplay this violation are without merit. First, the People assert that Mr. Garay’s trial counsel had the opportunity to “be heard” at an earlier, off-the-record discussion (People’s Br. 18, 19), but the record plainly establishes that the Trial Court heard arguments, and made its decision, at the on-the-record hearing from which Mr. Garay’s trial counsel was physically absent. (A-189–A-191; Def.’s Br. 17–22.) It therefore does not matter that Mr. Garay’s trial counsel was present for an earlier, off-the-record telephone call, or for the Trial Court’s act of effectuating the discharge, because Mr. Garay’s 1 The People’s assertion that “nothing in the record” suggests that the Trial Court was “irritated” by Mr. Garay’s trial counsel cannot be taken seriously. (People’s Br. 24 n.5.) The People have themselves collected precisely that evidence. See People’s Br. 11 n.3 (noting, inter alia, that “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.”). 5 trial counsel was absent when the Trial Court held the hearing at which it made the actual decision to discharge the sworn, seated juror. As this Court has repeatedly recognized, the right to participate in a proceeding means the right to participate at the moment when participation is meaningful. See, e.g., People v. Favor, 82 N.Y.2d 254, 267 (1993) (noting, in Sandoval context, that a trial court’s recitation of “the gist of its . . . decision . . . does not ameliorate the error, since this recitation did not furnish defendant with the opportunity for meaningful participation to which he was entitled”); People v. Evans, 79 N.Y.2d 407, 413–15 (1992) (cautioning that the opportunity to testify at the hearing before a decision is made is “‘qualitatively different’” from and “more advantageous” than the opportunity to testify at a reopened hearing following the original decision). The Appellate Divisions have repeatedly recognized in this context that the right to counsel requires that counsel have the opportunity to meaningfully participate in the portion of the proceeding where the court decides to retain or discharge a juror. See, e.g., People v. Ventura, 113 A.D.3d 443, 444- 45 (1st Dep’t 2014) (reversing conviction where the trial court did not conduct an inquiry into possible juror bias; holding “there should have been an inquiry, in which defense counsel could participate”); People v. Otigho, 113 A.D.3d 637, 638 (2d Dep’t 2014) (“[R]eversal is required based upon defense counsel’s absence from an in camera interview with a sworn juror . . . .”). Accordingly, there is no question that Mr. Garay’s right to counsel was violated here. 6 Second, the People’s reliance on speculation about events that occurred off the record cannot cure this patent violation of Mr. Garay’s right to counsel. The People’s brief contains numerous assertions that are not supported by — and are often in significant tension with — the record. For example, the record simply does not support the claim that Mr. Garay’s trial counsel had “the opportunity to express his position regarding replacing the ill juror during his off-the-record discussion with the court.” (People’s Br. 17.) Similarly, the record does not support the assertion that Mr. Garay’s trial counsel was “fully informed of the circumstances regarding the ill juror.” (Id. 24.) This type of speculation about what happened off the record cannot excuse a violation that is clear on the face of the record. See Jones v. Vaco, 126 F.3d 408, 417 (2d Cir. 1997) (noting the “old legal truism” that “God may know but the record must show”). Third, harmless error analysis does not apply to violations of the right to counsel involving an attorney’s absence from a critical stage of the trial. (Def.’s Br. 17–18; cf. People v. Wardlaw, 6 N.Y.3d 556, 561 (2006).) For this reason, the People’s argument that the Trial Court’s decision to discharge the sick juror was substantively correct and that “[i]t is hard to imagine that defendant could have offered any meaningful input” (People’s Br. 20) must be rejected. The Trial Court’s decision to discharge the sworn, seated juror was not required. Therefore, it is immaterial whether the Trial Court’s ultimate decision to discharge the juror was “fully warranted.” (People’s Br. 20.) The Trial Court 7 would have been within its discretion to adjourn the trial until the next day and see if the juror’s health improved. The fact that the Trial Court might have discharged the juror even if Mr. Garay’s trial counsel had been present for and had the opportunity to meaningfully participate in the juror discharge hearing simply does not excuse the right to counsel violation. (Def.’s Br. 17–22.) The People’s references to the legislative history of the juror discharge statute are unavailing. In determining whether to exercise its discretion to discharge a juror, a trial court must conduct a “reasonably thorough inquiry,” People v. Jeanty, 94 N.Y.2d 507, 516 (2000), and “shall afford the parties an opportunity to be heard before discharging a juror.” C.P.L. § 270.35(2)(a) (emphasis added).2 The legislative history upon which the People rely plainly provides that “defense counsel . . . must be given an opportunity to be heard prior to the discharge of a juror.” Sponsor’s Mem. In Supp., July 23, 1996, Bill Jacket, at 5, L 1996.3 The People’s focus on the difference between alternate and 2 As this Court explained in Jeanty, “[w]ithout a reasonably thorough inquiry . . . the exercise of the court’s discretion on the ultimate issue of whether or not to replace the juror would be uninformed.” Jeanty, 94 N.Y.2d at 516. In light of this requirement, the People’s position that the juror discharge hearing was not a hearing proves too much. (People’s Br. 23–24.) If, as the People now argue, there was no hearing or the Trial Court simply disregarded the argument it heard during the on-the-record hearing, reversal would be independently required because the Trial Court did not fulfill its statutory duties. 3 In light of the statutory text and the legislative history, the People’s suggestion that Mr. Garay’s right to counsel was not violated because his trial counsel purportedly had an earlier opportunity to offer “input” is particularly misguided. The People point to no analogous statutory provision where a criminal defendant’s right to be heard is limited to an amorphous opportunity to offer off-the-record “input,” especially where there is no record evidence that such an opportunity was in fact provided and when the ultimate decision is made in an on- the-record hearing where defense counsel is absent. 8 “regular” jurors mistakenly conflates the outcome of the juror discharge decision with the constitutional and statutory requirement that defense counsel be afforded a right to meaningfully participate in that decision. Even if harmless error analysis applied — which it does not — reversal would still be required. As this Court explained in People v. Wardlaw, 6 N.Y.3d at 560, the appropriate harmless error analysis for pre-trial violations of the right to counsel is to “assume . . . that if defendant had had a lawyer at the hearing he would have prevailed,” and to analyze whether that altered result could have potentially changed the result of the trial. Here, assuming that Mr. Garay’s trial counsel was present at the hearing and would have been successful in keeping the discharged juror on the jury, the Trial Court’s actual decision to discharge the juror would be considered improper.4 See People v. Anderson, 70 N.Y.2d 729, 730–31 (1987); see also People v. Dukes, 8 N.Y.3d 952, 953 (2007). Fourth, the People’s insistence that co-defendant’s counsel could substitute for the participation of Mr. Garay’s trial counsel has no legal or factual basis. (See Def.’s Br. 20–21.) The People suggest that at the on-the-record juror discharge hearing, counsel for Mr. Garay’s co-defendant was “merely communicating what . . . his colleague . . . had told him to say.” (People’s Br. 22.) But the record indicates that, contrary to the People’s assertion, co-defendant’s counsel merely 4 In addition, there is no way to quantify how the discharged juror could have changed the dynamic of the deliberations, and thus, the discharge can in no way be considered harmless. 9 “believe[d]” Mr. Garay’s counsel was joining in his objection. (A-189 at 10–12.) In any event, Mr. Garay did not consent to have his co-defendant’s counsel appear on his behalf, as is required under established New York law. (Def.’s Br. 20–21; People v. Allah, 80 N.Y.2d 396, 400 (1992).)5 Fifth, the People’s effort to explain away the First Department’s reliance on Hunte v. Keane, No. CV 97–1879 (RR), 1999 WL 754273 (E.D.N.Y. Aug. 24, 1999) — a decision applying federal law and advanced by neither party below — is unpersuasive. As an initial matter, Hunte did not “punctate” the First Department’s juror discharge analysis (People’s Br. 23). Instead, it was the only case the First Department cited on the merits of the juror discharge issue. More importantly, Hunte analyzed a defendant’s claimed deprivation of his right to counsel under the Sixth Amendment, not New York’s constitutional right to counsel, and concluded that the state court proceedings did not involve “an unreasonable application of . . . clearly established Federal law . . . or . . . an unreasonable determination of the facts.” Id. at *5 (emphasis added). Because New York’s constitutional right to counsel is “far more expansive than the Federal counterpart,” People v. Bing, 76 N.Y.2d 331, 338–39 (1990), and “offers broader protections,” People v. Ramos, 99 N.Y.2d 27, 33 (2002), the First Department’s 5 The People’s suggestion that the conflict claim is unpreserved is perplexing. (Contra People’s Br. 22.) At trial, neither the People, nor Mr. Garay, nor the Trial Court suggested that co-defendant’s counsel was jointly representing Mr. Garay for the juror discharge hearing. The People, having raised joint representation for the first time in the Appellate Division, can hardly complain that it is now before this Court. 10 reliance on Hunte was misplaced. Tellingly, Hunte’s discussion of defense counsel’s absence from trial proceedings does not cite a single New York state case. In sum, the People’s attempts to rationalize the Trial Court’s actions do not excuse a clear violation of the right to counsel. C. This Issue Is Properly Before This Court This Court has “long recognized that certain errors need not be preserved,” including “violation[s] of the right to counsel.” See People v. Ahmed, 66 N.Y.2d 307, 310 (1985). Accordingly, a right to counsel claim can be raised for the first time on appeal, provided the deprivation is established on the face of the record. See People v. McLean, 15 N.Y.3d 117, 121 (2010); People v. Margan, 157 A.D.2d 64, 70 (2d Dep’t 1990) (noting that “a violation of the right to counsel may be raised, as a question of law, for [the] first time on appeal”). The People concede as much (People’s Br. 17 n.4), but they nevertheless contend that Mr. Garay’s claim is unpreserved because Mr. Garay’s trial counsel was required to object (1) at the hearing from which he was physically absent, or (2) when he returned to the courtroom, after the Trial Court had conducted a hearing and after the Trial Court had discharged a sworn and seated juror. These contentions are meritless. First, the fact that Mr. Garay’s trial counsel was physically absent from the juror discharge hearing forecloses the People’s contemporaneous objection argument. As the People acknowledge, the juror discharge hearing was held 11 “outside the jury’s presence, [while] defendant’s lawyer was not there . . . .” (People’s Br. 14.) The People’s reliance on People v. Narayan, 54 N.Y.2d 106 (1981), is therefore misplaced, as the violation at issue in Narayan occurred while defense counsel was physically present and remained “silent, registering no protest.” Id. at 110. As this Court stated, “[t]he fact of counsel’s presence . . . at the time of the trespass on defendant’s right to his assistance” was dispositive for the preservation analysis. Id. at 112. Here, in contrast, it is undisputed that Mr. Garay’s trial counsel was physically absent when the violation occurred. Therefore, no objection was required to preserve this claim. See People v. Strothers, 87 A.D.3d 431, 433 (1st Dep’t 2011) (“Where counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal.”); Margan, 157 A.D.2d at 70 (applying “the general rule that a violation of the right to counsel may be raised, as a question of law, for [the] first time on appeal”). Second, Mr. Garay’s trial counsel was not required to object when he returned to the courtroom, after the Trial Court held the juror discharge hearing and after the Trial Court rendered its decision. Because the Trial Court had already held a hearing, heard arguments, and made its decision, any objection would have been in vain. Although a litigant must lodge an objection either contemporaneously or when “the court had an opportunity of effectively changing the same,” C.P.L. § 470.05(2), New York law does not require futile objections. 12 See People v. Mezon, 80 N.Y.2d 155, 161 (1992) (“The law does not require litigants to make repeated pointless protests after the court has made its position clear.”). The People acknowledge that Mr. Garay’s trial counsel was not present when the Trial Court rendered its decision, and instead focus on the fact that Mr. Garay’s trial counsel was present “when the court effectuated the replacement.” (People’s Br. 16.) But because the right to counsel violation was complete when the Trial Court decided to replace the sworn, seated juror, Mr. Garay’s trial counsel did not have an opportunity to influence the outcome of the ruling once he returned to the courtroom. Therefore, he did not need to object to preserve this claim of error.6 Cf. Favor, 82 N.Y.2d at 267; Evans, 79 N.Y.2d at 413–15. In short, the People’s arguments that Mr. Garay’s right to counsel claim is “utterly unpreserved” (People’s Br. 16) are utterly without merit. 6 In all events, the People cannot create a preservation barrier by relying on off-the-record material to overcome a violation that is clear on the face of the record. (Contra People’s Br. 17 n.4.) The People’s brief contains numerous unsupported, speculative claims about off- the-record events. For example, it is not “patent” that the trial judge made his decision on the juror discharge issue in an off-the-record discussion. (People’s Br. 14.) The People’s assertion finds no support in the record or in common sense: whatever happened off the record, the trial judge held an on-the-record hearing, heard arguments, and announced his decision to discharge the juror — all while Mr. Garay’s trial counsel was physically absent from the courtroom. The People’s brief effectively presents the reverse of People v. Kinchen, 60 N.Y.2d 772 (1983): a litigant seeking to use off-the-record material to overcome the on-the-record violation of the right to counsel. 13 II. THE TRIAL COURT VIOLATED MR. GARAY’S SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL BY FAILING TO SUA SPONTE CONSIDER REASONABLE ALTERNATIVES TO COURTROOM CLOSURE Mr. Garay established in his opening brief that this Court’s decision in People v. Echevarria, 21 N.Y.3d 1 (2013), which articulated the “implied” consideration standard, cannot be reconciled with Presley v. Georgia, 558 U.S. 209 (2010) (per curiam), or the numerous decisions of sister state and federal courts interpreting Presley. (Def’s Br. 24–29.) The People’s arguments to the contrary should be rejected. The holding of Presley is clear: trial courts “are required to consider alternatives to closure even when they are not offered by the parties,” and must make “articulated . . . [and] specific” findings supporting closure. 558 U.S. at 214–15 (internal citation and quotation marks omitted). In so holding, Presley rejected this Court’s analysis in Echevarria.7 The People warn that if Presley is read to mean what it says, the floodgates will open to challenges from defendants that trial courts have failed to consider additional alternatives.8 (People’s Br. at 38.) But Presley’s requirement is simple, 7 The People properly acknowledge that the “responsibility” of identifying reasonable alternatives to closure “rests with the trial court and the defendant is not required to suggest any particular alternatives” (People’s Br. 34), but simultaneously fault Mr. Garay for “propos[ing] no other alternatives.” (People’s Br. 36.) In Presley, the Supreme Court specifically rejected the suggestion that a defendant “was obliged to present . . . any alternatives that he wishes the Court to consider.” 558 U.S. at 211, 214. 8 After acknowledging that Mr. Garay “does not challenge . . . the adequacy of the People’s showing in support of the closure order,” the People devote six pages of their brief to re- 14 and trial courts must follow it: they must “consider alternatives to closure even when they are not offered by the parties.” Presley, 558 U.S. at 214 (emphasis added). Similarly, the People’s professed concern that some alternatives to closure “could place a defendant’s fair trial rights at substantial risk” is unpersuasive. (People’s Br. 38.) Such concerns are better left to defense lawyers in their roles as “single-minded counsel for the accused.” People v. Rosario, 9 N.Y.2d 286, 290 (1961). Finally, the People dismiss — without any analysis or argument — the numerous federal and state decisions cited by Mr. Garay interpreting Presley to mean exactly what it says. The People, however, fail to address this Court’s decision in People v. Martin, 16 N.Y.3d 607, 612 (2011).9 And for good reason: in Martin, this Court interpreted Presley to require that trial courts consider reasonable alternatives to closure on-the-record, even when not proposed by the litigating whether the closure in this case satisfied the first Waller prong. (People’s Br. 25– 30.) But that finding did not obviate the Trial Court’s obligation under Presley to consider reasonable alternatives to courtroom closure, and to “make findings adequate to support the closure” and “specific enough that a reviewing court can determine whether the closure order was properly entered.” Presley, 558 U.S. at 214–15 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984) and Press-Enterprise Co. v. Superior Court of Cal., Cnty. Of Riverside, 478 U.S. 1, 15 (1986) (internal quotation marks omitted)). 9 In a footnote, the People seek to distinguish the numerous cases Mr. Garay cited on the grounds that they have “only limited [ ] discussion of any of the Waller factors.” (People’s Br. 40 n.8.) Not so. See, e.g., State v. Wise, 176 Wash.2d 1 (2012) (citing Waller at least 9 times, and specifically addressing the third Waller factor); Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012) (citing Waller 11 times and discussing all of the Waller factors). More importantly, of course, the People do not engage with the reasoning of any of these numerous cases. 15 parties.10 Id. This Court should return to its holding in Martin, which correctly interpreted Presley. For the reasons outlined in Mr. Garay’s opening brief, as well as those above, Echevarria should be overruled, and Mr. Garay’s conviction reversed based on the Trial Court’s failure to engage in on-the-record consideration of reasonable alternatives to courtroom closure. III. THE TRIAL COURT ERRED BY SUMMARILY DENYING MR. GARAY’S REQUEST FOR A SUPPRESSION HEARING The Trial Court erred by summarily denying Mr. Garay’s request for a suppression hearing in light of the limited information available when Mr. Garay moved for a hearing. (Defs.’ Br. 31–36.) The People do not dispute the governing law — a straightforward application of People v. Mendoza, 82 N.Y.2d 415 (1993) — or the sources of information available to Mr. Garay when he moved for a hearing. Nevertheless, the People continue to insist that Mr. Garay was required to respond to (1) theories the People advanced for the first time at trial that were unrelated to the alleged probable cause for Mr. Garay’s arrest, and (2) allegations against co-defendants, including facts not within Mr. Garay’s personal knowledge. These arguments disregard the fact that a defendant seeking a suppression hearing “need not prove his entire case in the motion papers.” People v. Lopez, 263 10 Instead, the People rely upon Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc), which Justice Thomas cited in his dissent in Presley. (People’s Br. 38; Presley, 558 U.S. at 219 (Thomas, J., dissenting).). This citation is curious, given the Presley majority’s implicit repudiation of Ayala. 16 A.D.2d 434, 435 (1st Dep’t 1999). Accordingly, to the extent this Court does not reverse Mr. Garay’s conviction on Point I or Point II, this case should be remanded to the Supreme Court, New York County for a hearing on the suppression of the physical evidence against Mr. Garay. A. Mr. Garay Was Not Required To Anticipate The People’s Trial Case In Order To Obtain A Pre-Trial Suppression Hearing The People wrongly suggest that Mr. Garay should have predicted the People’s trial evidence, and that his failure to do so justified the Trial Court’s denial of his request for a suppression hearing. The People’s brief includes numerous references to trial evidence and theories that have absolutely no bearing on the probable cause for Mr. Garay’s arrest, and were not available to Mr. Garay at the time he moved for a suppression hearing.11 Thus, for example, the People argue that Mr. Garay “suddenly and quickly crossed several lanes of traffic” while driving Ms. Rivera — a purported “evasive maneuver” — but that evidence was only presented at trial, not before Mr. Garay moved for a suppression hearing. (Contra People’s Br. 2.) The People’s attempt to justify the Trial Court’s summary denial of a suppression hearing on the basis of evidence adduced only at trial is improper and without merit. For similar reasons, Mr. Garay was not required to respond to inferences that the People’s appellate counsel now draw with the benefit of a full record. For 11 This evidence was, in any event rejected by the jury when it acquitted Mr. Garay of all but one of the charges against him. 17 example, the People suggest that, because the quantity of cocaine allegedly recovered from Mr. Garay’s pocket purportedly matched the cocaine recovered from Ms. Rivera’s apartment, there was “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.” (People’s Br. 51.) This argument fails for two reasons. First, the contraband allegedly seized after Mr. Garay’s arrest cannot retroactively provide the police with probable cause for that arrest.12 It is axiomatic that “[a] search may not be justified by its avails. Hindsight is not to be used to abridge the vital constitutional safeguards against unreasonable searches and seizures.” People v. Ocasio, 119 A.D.2d 21, 28 (1st Dep’t 1986) (citing People v. Sobotker, 43 N.Y.2d 559, 565 (1978)); see also People v. Allende, 39 N.Y.2d 474, 477 (1976) (reversing denial of suppression motion where “despite [the] subsequent finding of [ ] contraband, the seizure, judged as it must be as of its inception,” lacked reasonable suspicion). Second, although the People argued at arraignment that “[a] piece of cocaine was found in Mr. Garay’s pocket that appeared to match” a piece that had been “cut out” from the kilogram of cocaine (A-17), the People did not argue at arraignment (or at any time before Mr. Garay moved for a suppression hearing) that this piece of cocaine 12 For this reason, all of the People’s arguments regarding the small amount of cocaine that was allegedly recovered from Mr. Garay after his arrest, and the kilogram of cocaine that was allegedly recovered from Ms. Rivera’s apartment, have no place in this analysis. (See generally A-50–A-52.) The contraband allegedly recovered after Mr. Garay was arrested has no bearing on whether the police had probable cause to arrest Mr. Garay in the first place. 18 was payment for Mr. Garay’s alleged role in the conspiracy. This inference had nothing to do with the alleged probable cause for arresting Mr. Garay, and is thus irrelevant to Mr. Garay’s request for a suppression hearing. B. Mr. Garay Was Not Required To Respond To Allegations Against Co-Defendants Or Allegations Not Within His Personal Knowledge In Order To Obtain A Suppression Hearing Mr. Garay also was not required to raise questions of fact regarding allegations against co-defendants or allegations not within his personal knowledge in order to obtain a suppression hearing. While insisting that Mr. Garay has mischaracterized their position (People’s Br. 49–50 n.9), the People devote the majority of their suppression argument to a re-hash of allegations against Mr. Garay’s co-defendants. Simply put, it is immaterial to Mr. Garay’s suppression motion that the complaint “detailed several undercover drug sales that had involved Lillian Rivera and other co-defendants” (People’s Br. 42), because none of the alleged sales involved Mr. Garay. For similar reasons, Mr. Garay had no reason to deny that Ms. Rivera was “running a drug enterprise out of the Dyckman Houses” or was the subject of a “long-term police investigation.” (People’s Br. 50, 45.) The People fault Mr. Garay for failing to supplement his suppression motion with his “personal knowledge of the circumstances of March 7, 2008” (People’s Br. 44), but that knowledge provided no basis for him to controvert these allegations. 19 All but one of the overt acts alleged against Mr. Garay involved innocuous conduct he had no reason to deny: that he drove Ms. Rivera, a long-time family friend; that he possessed an NYPD employee ID, which was validly issued by his employer, the NYPD; and that he had more than one vehicle registered in his name. As to the alleged cocaine possession, Mr. Garay denied that there was probable cause for a stop, noting that he was “stopped pursuant to dropping off a family member in the County of New York,” was “not engaged in any criminal conduct,” and had “no contraband . . . in plain view” when he was stopped. (A-79.) Indeed, the People now concede that “[a]t the time that defendant was taken into custody, there was no allegation that he was in the midst of committing a crime.” (People’s Br. 53.) In light of this concession, and given the fact that Mr. Garay alleged that he was stopped while driving a family friend, Mr. Garay implicitly denied the People’s broader conspiracy allegations.13 Given the context of this case, there was “little else of consequence” Mr. Garay could say, and no more that he was required to say in order to obtain a suppression hearing. Mendoza, 82 N.Y.2d at 429. 13 The People’s insinuation that Mr. Garay “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’” is no more convincing now than when the People made the same argument below. (Contra People’s Br. 54.) Mr. Garay had no reason to deny that Ms. Rivera, a long-time family friend, was in fact a long-time family friend. Nor would Mr. Garay have reason to deny that he dropped Ms. Rivera at her apartment. CONCLUSION For the reasons advanced in Mr. Garay's opening brief as well as in Point I and Point II above, Mr. Garay's conviction should be reversed and a new trial ordered. At that new trial, the trial court should be ordered to hold a suppression hearing. In the alternative, this case should be remanded to the Supreme Court, New York County, for a hearing on the suppression of the physical evidence against Mr. Garay. Dated: New York, NY June 9, 2014 Respectfully submitted, PAUL, WEISS, RIFKIND, WHARTON &G SONLLP By: -i--...,.,..-4----....:....D_-=--=--=--=--=--=--=--=--=-- 1285 A venue of the Americas New York, NY 10019-6064 (212) 373-3000 abemstein@paulweiss.com jborod@paulweiss.com SCOTT A. ROSENBERG THE LEGAL AID SOCIETY 199 Water Street, 5th Floor New York, New York 10038 Of Counsel: Andrew C. Fine (212) 577-3440 afine@legal-aid.org Attorneys for Defendant-Appellant 20