In People v. Bici, 621 N.Y.S.2d 666 (App.Div.), appeal denied, 629N.Y.S.2d 729 (1995), the trial judge, sua sponte, announced his determination, over objection, to exclude the public from a portion of the jury voir dire. There had been no specific requests by potential jurors based on their privacy concerns; nor had there been a proper inquiry into the need for the closure, and a balancing of those reasons against the defendant's Sixth Amendment right to a public trial.Summary of this case from State v. Cuccio
January 30, 1995
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and determined to have been established.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it is legally sufficient to establish the defendant's guilt beyond a reasonable doubt. We nevertheless conclude that the judgment of conviction must be reversed because of fundamental errors.
Before a defendant's right to a public trial (US Const 6th, 14th Amends; Civil Rights Law § 12; Judiciary Law § 4) may be abridged, the court must make a careful inquiry into the need for closure to the public of the proceedings in order to ensure that the defendant's right to a public trial "is not being sacrificed for less than compelling reasons" (People v. Jones, 47 N.Y.2d 409, 414-415, cert denied 444 U.S. 946; see also, Press-Enterprise Co. v. Superior Ct., 464 U.S. 501, 510-512; People v. Clemons, 78 N.Y.2d 48, 51-52).
The court in this case sua sponte announced its determination, over objection, to close to the public a portion of the voir dire questioning and to conduct the proceedings in its robing room without either specific requests for privacy by the potential jurors or a proper inquiry into the reasons for the closure and a balancing of those reasons against the defendant's right to a public trial. The procedure that was employed in this case, coupled with the court's failure to fully articulate on the record the reasons for its decision, constitutes per se reversible error (People v. Jones, supra, 47 N.Y.2d, at 415-417; see also, People v. Clemons, supra, 78 N.Y.2d, at 52-53; People v Kin Kan, 78 N.Y.2d 54, 57-59).
It was further error, among other things, for the court, during the jury's deliberations, to fail to apprise the defendant, his counsel, and the prosecutor of a note from the jury prior to formulating a response thereto. The court also erred by sending a court officer to advise the jury of its response in the absence of both counsel and the defendant. This procedure denied the defendant his constitutional due process right to be present at a material stage of his trial (People v. Ciaccio, 47 N.Y.2d 431, 436-437; see also, People v. Cain, 76 N.Y.2d 119, 123-124), and it is a violation of CPL 310.30 (see, People v. O'Rama, 78 N.Y.2d 270, 276-280).
Although the defendant raises a claim of error with respect to the Grand Jury proceedings, review of the Grand Jury minutes confirms that the integrity of those proceedings was not impaired and no prejudice accrued to the defendant (see, CPL 210.35; cf., People v. Williams, 73 N.Y.2d 84, 90-91). Thus, dismissal of the indictment is not warranted.
In light of our determination to reverse, we need not address the defendant's remaining contentions. Miller, J.P., Joy, Krausman and Goldstein, JJ., concur.