People v. Clemons

• Decision Date: 11 June 1991
• Citation: 571 N.Y.S.2d 433,574 N.E.2d 1039,78 N.Y.2d 48
• Parties: , 574 N.E.2d 1039, 19 Media L. Rep. 1154 The PEOPLE of the State of New York, Appellant, v. Isaiah CLEMONS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 433

571 N.Y.S.2d 433

78 N.Y.2d 48, 574 N.E.2d 1039, 19

Media L. Rep. 1154

The PEOPLE of the State of New York, Appellant, v. Isaiah CLEMONS, Respondent.

Court of Appeals of New York.

June 11, 1991.

[78 N.Y.2d 49] Robert E. Wildridge, District Attorney (James P. Maxwell, of counsel), Syracuse, for appellant.

Vivian Aquilina, Rochester, and Gerald T. Barth, Syracuse, for respondent.

OPINION OF THE COURT

TITONE, Judge.

The right to a public trial (U.S. Const. 6th Amend.; Civil Rights Law § 12; Judiciary Law § 4), ¹ although firmly rooted in our law, is neither inflexible nor absolute, and at times must be balanced against other competing interests which are essential to the fair administration of justice. The present appeal requires us to consider whether, in context of this rape prosecution, that balance was properly struck when the trial court, after conducting no more than a perfunctory inquiry of counsel and without articulating any basis for its ruling on the record, ordered that the public be excluded from the courtroom during the complainant's testimony. For the reasons that follow, we conclude that it was not.

I

In May of 1988, an Onondaga County Grand Jury returned a five-count indictment against defendant, charging him with, among other crimes, rape in the first degree (Penal Law § 130.35[1], sexual abuse in the first degree (Penal Law § 130.65[1] and kidnapping in the second degree (Penal Law § 135.20). Each of these charges arose out of defendant's alleged rape and abduction of a young woman from the Syracuse area.

At defendant's trial, prior to the complainant testifying, the following colloquy took place between the presiding Judge and counsel:

"THE COURT: Ms. Dougherty [prosecutor], it's my understanding you're going to make application to close the Court Room to the public during the testimony of the victim in this case, is that correct, ma'am?

"MS. DOUGHERTY: Yes, Your Honor.

"THE COURT: And that's as a result of her request to have that done?

"MS. DOUGHERTY: Yes, Your Honor, she has made that request, that she would ask the Court to keep the Court Room closed because of the nature of her testimony.

"THE COURT: Mr. Cognetti [defense counsel]?

"MR COGNETTI: I would oppose that, Judge. * * *

"THE COURT: I'm going to close the Court Room down."

Defendant was subsequently convicted of each of the charges noted above.

On appeal, however, the Appellate Division, with one Justice dissenting, reversed and ordered a new trial, 162 A.D.2d 948, 557 N.Y.S.2d 179. The majority concluded that defendant's Sixth Amendment right to a public trial had been violated, since, in its view, the trial court had neither made a careful enough inquiry to determine if closure of the courtroom was actually warranted under the circumstances, nor articulated any basis for its decision on the record. A Justice of the Appellate Division subsequently granted the People leave to appeal to this Court. We now affirm.

II

Although of uncertain origin, "the right to a public trial has long been regarded as a fundamental privilege of the defendant in a criminal prosecution." (People v. Jelke, 308 N.Y. 56, 61, 123 N.E.2d 769; see generally, Richmond Newspapers v. Virginia, 448 U.S. 555, 564-569, 100 S.Ct. 2814, 2820-2823, 65 L.Ed.2d 973.) Its significance has been attributed to a number of factors, foremost of which is the need to ensure that an accused is dealt with fairly and not unjustly condemned (see, Estes v. Texas, 381 U.S. 532, 538-539, 85 S.Ct. 1628, 1630-1631, 14 L.Ed.2d 543; People v. Hinton, 31 N.Y.2d 71, 73, 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; 1 Cooley, Constitutional Limitations, at 647 [8th ed 1927]. In this regard, it has been said that: "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." (In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682.) Similarly, it has been recognized that open trials tend to promote "testimonial trustworthiness" by inducing a fear that perjured testimony might be detected (People v. Jones, 82 A.D.2d 674, 677, 442 N.Y.S.2d 999, lv. denied 55 N.Y.2d 751, 447 N.Y.S.2d 1034, 431 N.E.2d 982, citing People v. Jelke, 308 N.Y., at 62-63, 123 N.E.2d 769, supra ), and may even lead previously unknown persons to come forward with relevant evidence (see, Richmond Newspapers v. Virginia, 448 U.S., at 570 n. 8, 100 S.Ct., at 2824 n. 8, supra, citing 6 Wigmore, Evidence § 1834, at 436 [Chadbourn rev 1976].

The presumption of openness, however, is not absolute and must in certain circumstances give way to other competing societal concerns (see, Waller v. Georgia, 467 U.S. 39, 45, 48, 104 S.Ct. 2210, 2214, 2216, 81 L.Ed.2d 31; People v. Jones, 47 N.Y.2d 409, 413, 418 N.Y.S.2d 359, 391 N.E.2d 1335, cert. denied 444 U.S. 946, 100 S.Ct. 307, 62 L.Ed.2d 315; People v. Hinton, 31 N.Y.2d, at 73-74, 334 N.Y.S.2d 885, 286 N.E.2d 265, supra; People v. Jelke, 308 N.Y. at 63, 123 N.E.2d 769, supra; see also, People v. Kin Kan, 78 N.Y.2d 54, 571 N.Y.S.2d 436, 574 N.E.2d 1047 [decided TODAY ]. ² Accordingly, we have upheld temporary closures of the courtroom in a number of instances, including where necessary to shield the identity of a police officer involved in an ongoing undercover operation (see, e.g., People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265, supra ), or where needed to protect a witness from an "incapacitating embarrassment" (see, People v. Mateo, 73 N.Y.2d 928, 930, 539 N.Y.S.2d 727, 536 N.E.2d 1146).

In doing so, however, we have always emphasized that no closure "can be tolerated that is not preceded by an inquiry careful enough to assure the court 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, at 414-415, 418 N.Y.S.2d 359, 391 N.E.2d 1335, supra ). Indeed, the Supreme Court has made it quite clear that closure determinations must depend on a close examination of the competing interests at stake in the specific context of the individual case (see, Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607-608, 102 S.Ct. 2613, 2620-2621, 73 L.Ed.2d 248). ³ That Court has likewise held that a trial court must articulate its reasons for ordering closure on the record, and those reasons should be expressed in " 'findings specific enough [so] that a reviewing court can determine whether [that] order was properly entered.' " (Waller v. Georgia, 467 U.S., at 45, 104 S.Ct., at 2215, supra, quoting Press-Enterprise Co. v. Superior Ct., 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629; see, Rovinsky v. McKaskle, 722 F.2d 197, 200, and n. 10 [5th Cir.]; State v. Klem, 438 N.W.2d 798, 801 [Sup.Ct.N.D.]; accord, Globe Newspaper Co. v. Superior Ct., 457 U.S., at 608, n. 20, 102 S.Ct., at 2621, n. 20, supra; Richmond Newspapers v. Virginia, 448 U.S., at 580-581, 100 S.Ct., at 2829, supra [plurality opn].) ⁴

III

Applying these principles to the case at bar, we conclude that defendant's Sixth Amendment right to a public trial was clearly violated. Although a trial court is not "without discretion to choose among alternative means for determining whether an application to close a courtroom" should be granted (People v. Jones, 47 N.Y.2d, at 414, 418 N.Y.S.2d 359, 391 N.E.2d 1335, supra ), here the record discloses that closure was ordered solely on the basis of a brief colloquy between the presiding Judge and counsel during which the prosecutor merely informed the court that the complainant desired that the courtroom be closed while she testified because of the subject matter of her testimony. Inexplicably, the court did not conduct any further inquiry concerning the nature and degree of any psychological or emotional impact testifying in open court would have on the witness (cf., People v. Joseph, 59 N.Y.2d 496, 465 N.Y.S.2d 915, 452 N.E.2d 1243 [Trial Judge conferred with complainant and counsel in robing room]. Nor does the record indicate that the Judge had any other basis for adequately assessing what that effect would be (cf., People v. Glover, 60 N.Y.2d 783, 785, 469 N.Y.S.2d 677, 457 N.E.2d 783 [Trial Judge had presided over defendant's previous trial on the same charges and thus knew of the highly embarrassing nature of the complainant's testimony]; People v. Jones, 82 A.D.2d, at 680, 442 N.Y.S.2d 999, supra [Trial Judge, prior to ordering closure, had observed the witness testify in a very distressed and upset manner about the events leading up to the actual sexual assault]. Instead, closure was ordered "almost casually on little more than the bare application" of counsel(People v. Cordero, 150 A.D.2d 258, 259, 541 N.Y.S.2d 417, affd 75 N.Y.2d 757, 551 N.Y.S.2d 902, 551 N.E.2d 103), and without the trial court articulating any reasons for its decision.

While the Sixth Amendment does not require a judicial insensitivity to the very real problems that rape victims may face in having to testify in open court (see, People v. Jones, 82 A.D.2d 674, 442 N.Y.S.2d 999, supra; see also, People v. Glover, 60 N.Y.2d 783, 469 N.Y.S.2d 677, 457 N.E.2d 783, supra; People v. Joseph, 59 N.Y.2d 496, 465 N.Y.S.2d 915, 452 N.E.2d 1243, supra; United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694-695 [7th Cir.], cert. denied 434 U.S. 1076, 98 S.Ct. 1266, 55 L.Ed.2d 782), ⁵ it nonetheless does demand a more careful balancing and weighing of the competing interests than that conducted by the trial court...