People v. Nieves

• Decision Date: 29 October 1996
• Citation: 648 N.Y.S.2d 583,232 A.D.2d 305
• Parties: The PEOPLE of the State of New York, Respondent, v. Milton NIEVES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 583

648 N.Y.S.2d 583

232 A.D.2d 305

The PEOPLE of the State of New York, Respondent, v. Milton NIEVES, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Oct. 29, 1996.

Grace Vee, New York City, for respondent.

Benjamin Lee, New York City, for defendant-appellant.

Before SULLIVAN, J.P., and MILONAS, RUBIN, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Patricia Williams, J.), rendered September 22, 1992, convicting defendant, after jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent indeterminate terms of imprisonment of from 5 to 10 years, unanimously affirmed.

Defendant was arrested for the sale of two glassine envelopes of heroin to an undercover detective for the sum of $26. On appeal, defendant contends that he was denied his Sixth Amendment right to a public trial because the Trial Justice closed the courtroom to the public while the undercover officer was on the witness stand. Specifically, he complains that there was no justification for barring his wife and children from the courtroom during the officer's testimony because it was not demonstrated that they posed any threat to the undercover officer's safety.

The limited closure of the courtroom was warranted by the State's substantial interest in maintaining the capability to conduct effective law enforcement operations by protecting the physical welfare of the undercover officer and by preserving his usefulness as an operative in future undercover operations (United States v. Lucas, 932 F.2d 1210, 1217; U.S. ex rel. Lloyd v. Vincent, 520 F.2d 1272, cert denied 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269; People v. Hinton, 31 N.Y.2d 71, 75, 334 N.Y.S.2d 885, 286 N.E.2d 265, cert denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273). Justification for closure was provided by the officer's testimony that he continues to make narcotics purchases three to four times a week in the area of defendant's arrest (People v. Reed, 215 A.D.2d 209, 210, 626 N.Y.S.2d 765, lv denied 86 N.Y.2d 801, 632 N.Y.S.2d 514, 656 N.E.2d 613). As defendant was arrested 12 blocks away from his residence, this constitutes a valid basis for the exclusion of defendant's family (cf., People v. Gutierez, 86 N.Y.2d 817, 633 N.Y.S.2d 470, 657 N.E.2d 491). It could hardly be considered prudent to permit the extensive viewing of a detective who is actively engaged in undercover operations in the very neighborhood where the observers reside (see, People v. Martinez, 82 N.Y.2d 436, 443, 604 N.Y.S.2d 932, 624 N.E.2d 1027; cf., Vidal v. Williams, 31 F.3d 67, 69 [2d Cir. 1994], cert denied 513 U.S. 102, 115 S. Ct. 778, 130 L.Ed.2d 672). Additionally, the undercover detective identified by name another undercover officer, who had been shot and killed some three years earlier in the same vicinity. Finally, a Court Officer observed defendant's wife talking with one or more jurors. Supreme Court appropriately concluded that, at a minimum, she had demonstrated both a lack of good judgment and a willingness to disobey judicial directives.

This Court is mindful of the decision of the United States Court of Appeals for the Second Circuit in Ayala v. Speckard, 89 F.3d 91 [1996], in which the Court abandoned its position in U.S. ex rel. Lloyd v. Vincent (supra ) in favor of a "substantial probability test", based upon its interpretation of the United States Supreme Court's decision in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31. In Ayala v. Speckard (supra ), the Circuit Court reversed the decision of the United States District Court for the Southern District of New York and remanded the matter for issuance of a writ of habeas corpus, thus overturning our decision in People v. Ayala, 202 A.D.2d 262, 608 N.Y.S.2d 642, affd 83 N.Y.2d 908, 614 N.Y.S.2d 390, 637 N.E.2d 281. The Circuit Court found it unavailing that the officer had resumed undercover operations in the area where the underlying crime took place, purchased narcotics in the same building during the week before his testimony and in the immediate vicinity of the defendant's arrest on some 20 occasions during the year, and stated that ex-defendants had attempted to identify him to others as a police officer (Ayala v. Speckard, supra, at 93). The Court held (at 95) that "the State failed to establish a substantial probability that anyone observing [the undercover officer's] testimony in open court would threaten his safety or cover should he return to the field in general or even the exact location at which Ayala was arrested." The Court noted that the officer had not stated a "particularized fear", but "expressly stated that he sought courtroom closure as a matter of course whenever he testified" (id.). The Court concluded, "The state may not subjugate Ayala's constitutional protections to the mere possibility that someone with the ability and inclination to injure [the undercover officer] will be present in the courtroom during his brief testimony" (id.).

The circumstances presented by the matter before this Court, however, fall squarely within an exception enunciated by the Second Circuit Court of Appeals in Ayala (supra ). Having...