People v. Alvarez

• Citation: 955 N.Y.S.2d 846,979 N.E.2d 1173,2012 N.Y. Slip Op. 07227,20 N.Y.3d 75
• Parties: The PEOPLE of the State of New York, Respondent, v. Luis ALVAREZ, Appellant. The People of the State of New York, Respondent, v. William George, Appellant.
• Decision Date: 30 October 2012
• Court: New York Court of Appeals

20 N.Y.3d 75

979 N.E.2d 1173

955 N.Y.S.2d 846

2012 N.Y. Slip Op. 07227

The PEOPLE of the State of New York, Respondent,

v.Luis ALVAREZ, Appellant.

The People of the State of New York, Respondent,

v.William George, Appellant.

Court of Appeals of New York.

Oct. 30, 2012.

Appellate Advocates, New York City (Kendra L. Hutchinson and Lynn W.L. Fahey of counsel), for appellant in the first above-entitled action.

Richard A. Brown, District Attorney, Kew Gardens (Danielle Hartman and John M. Castellano of counsel), for respondent in the first above-entitled action.

Appellate Advocates, New York City (Denise A. Corsí and Lynn W.L. Fahey of counsel), for appellant in the second above-entitled action.

Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Victor Barall of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

Chief Judge LIPPMAN.

The question presented by these appeals is whether a defendant must preserve the argument that he was deprived of the right to a public trial when his family members were excluded from the courtroom during a portion of voir dire. Because we find that preservation is required, we must affirm in George. However, since the issue was adequately preserved in Alvarez, we reverse and remit the matter to Supreme Court for a new trial.

People v. Alvarez

Alvarez was charged with two counts each of criminal possession of a weapon in the second, third and fourth degrees. Prior to trial, the parties discussed the possibility of defendant pleading guilty but, after discussing the offer with his mother, defendant elected to proceed to trial. The court brought in potential jurors and the parties conducted voir dire. Five jurors were selected from the first prospective venire. Another panel of 14 prospective jurors was then asked preliminary questions by the court concerning their prior experiences as jurors.

Upon returning from the lunch recess, defense counsel notified the court that, although it had escaped his notice, defendant advised him that his parents had not been present for the morning's jury selection proceedings. Although defendant's parents were present at that time, counsel moved for a mistrial based on the earlier denial of the right to a public trial. The court denied the motion, observing that the courtroom had been filled by prospective jurors and that in “every trial we ask the family to step out and as soon as seats are available, they are [the] first ones offered seats.”

The jury ultimately convicted defendant as charged. The Appellate Division modified by vacating the convictions for criminal possession of a weapon in the fourth degree and remitting for resentencing, and otherwise affirmed (76 A.D.3d 1098, 908 N.Y.S.2d 249 [2d Dept.2010] ). The Court rejected defendant's argument that he had been deprived of a public trial as unpreservedand, in any event, without merit. A Judge of this Court granted defendant leave to appeal (16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011] ) and we now reverse.

People v. George

Defendant was charged with robbery in the first, second and third degrees, as well as petit larceny. Prior to jury selection, the court noted that

“the defendant has some people in the courtroom and they are certainly entitled to be here. The only thing I would ask, when we have potential jurors come in, there will not be enough seats for everybody. Within five minutes, I'll excuse people and in order to not have spectators and jurors sitting together I'll have the spectators leave.”

Defense counsel made no protest, but instead thanked the judge, and the parties continued with the proceedings. The court brought in a panel of prospective jurors, gave them preliminary instructions and excused a number of individuals who indicated that they were unable to be fair and impartial. After 18 prospective jurors were placed in the box for additional questioning, the court asked the remaining prospective jurors to move forward, freeing the last row for the public. The court then requested that, when a court officer became available, any spectators be notified that they could enter the courtroom.

After trial, defendant was convicted of robbery in the first and second degrees. The Appellate Division affirmed, finding defendant's argument that his right to a public trial had been violated unpreserved and, in any event, without merit (79 A.D.3d 1148, 913 N.Y.S.2d 569 [2d Dept.2010] ). A Judge of this Court granted defendant leave to appeal (16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011] ) and we now affirm.

Discussion

The right to a public trial “has long been regarded as a fundamental privilege of the defendant in a criminal prosecution and extends to the voir dire portion of the trial” ( People v. Martin, 16 N.Y.3d 607, 611, 925 N.Y.S.2d 400, 949 N.E.2d 491 [2011] [internal quotation marks and citations omitted] ). Proceedings may nonetheless be closed when necessary, but the party seeking closure “ ‘must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and ... must make findings adequate to support the closure’ ” ( Martin, 16 N.Y.3d at 611, 925 N.Y.S.2d 400, 949 N.E.2d 491, quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984] ).

In Martin, the defendant's father was excluded from the courtroom during voir dire because the court maintained that it needed every seat for prospective jurors and because the court did not want the father communicating with any members of the jury pool. Despite the defendant's objection on public trial grounds, the court closed the proceeding without considering any alternatives ( see Martin, 16 N.Y.3d at 610, 925 N.Y.S.2d 400, 949 N.E.2d 491). We observed that neither of the concerns advanced by the trial court, “without more,” amounted to “an overriding interest ... likely to be prejudiced,” but determined that “the trial court's failure to consider any alternate accommodations violated defendant's right to an open trial, regardless of the reasons for closure” ( Martin, 16 N.Y.3d at 611, 612, 925 N.Y.S.2d 400, 949 N.E.2d 491). The obligation rests with the court to consider alternatives, even where the parties themselves do not offer any ( see Martin, 16 N.Y.3d at 612, 925 N.Y.S.2d 400, 949 N.E.2d 491).

Our holding rested on Presley v. Georgia, (558 U.S. 209, ––––, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 [2010] ), in which the United States Supreme Court made clear that a defendant's right to a public trial under the Sixth Amendment includes the voir dire of prospective jurors. The Court observed that it had previously recognized that the First Amendment gave the public a right to be present at the voir dire stage of a trial in Press–Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) and saw no basis for according a defendant any lesser protections under the Sixth Amendment ( see Presley, 558 U.S. at ––––, 130 S Ct at 724). The Court also held that “trial courts are required to consider alternatives to closure even when they are not offered by the parties,” observing that “ ‘[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system’ ” (Presley, 558 U.S. at ––––, 130 S Ct at 724, quoting Press–Enterprise Co., 464 U.S. at 505, 104 S.Ct....