People v. Colon

• Citation: 526 N.Y.S.2d 932,71 N.Y.2d 410,521 N.E.2d 1075
• Parties: , 521 N.E.2d 1075, 56 USLW 2602, 15 Media L. Rep. 1235 The PEOPLE of the State of New York, Respondent, v. Jose COLON, Appellant.
• Decision Date: 22 March 1988
• Court: New York Court of Appeals

Page 932

526 N.Y.S.2d 932

71 N.Y.2d 410, 521 N.E.2d 1075, 56

USLW 2602,

15 Media L. Rep. 1235

The PEOPLE of the State of New York, Respondent, v. Jose COLON, Appellant.

Court of Appeals of New York.

March 22, 1988.

Certiorari Denied June 30, 1988.

See 108 S.Ct. 2911.

Kevin F. Casey and Philip L. Weinstein, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty. (Nikki Kowalski and Barbara D. Underwood, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

The principal question presented by this appeal is whether locking the courtroom doors during the Trial Judge's charge to the jury--thereby precluding access to those who arrive after commencement of the charge, and prohibiting those who have elected to stay from leaving during its delivery--violates defendant's constitutional right to a public trial.

Defendant was charged with criminal sale and possession of cocaine arising out of an undercover drug investigation in February 1983. After the close of evidence, and prior to the court's charge to the jury, defense counsel inquired of the court whether it intended to close the courtroom during the charge. The Trial Judge responded that he would, as it was his practice, lock the courtroom doors at the time instructions were to begin--requiring those wishing to attend to remain for the duration of the charge--so that the jury would not be distracted by spectators coming and going. Defense counsel objected, arguing that this "sealing" of the courtroom violated defendant's right to a public trial. Defendant was subsequent convicted of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).

The Appellate Division, Second Department, affirmed defendant's conviction without reference to the issue which had not been briefed to that panel. 127 A.D.2d 678, 511 N.Y.S.2d 674. Subsequently, the First Department ruled, in People v. Venters, 124 A.D.2d 57, 511 N.Y.S.2d 283, appeal dismissed 70 N.Y.2d 658, 518 N.Y.S.2d 1052, 512 N.E.2d 578, that "courtroom closure during the charge in a criminal case, however hoary and time-honored such a practice may be, does not pass constitutional or statutory muster" ( People v. Venters, 124 A.D.2d 57, 58, 511 N.Y.S.2d 283, supra ). Citing Venters, defendant moved for reargument. That motion was denied, and defendant was granted leave to appeal by a Judge of this court. ¹ For the reasons that follow, we conclude that defendant's constitutional rights were not violated and therefore affirm the order of the Appellate Division.

I.

Since abolition of the Court of Star Chamber in England in 1641, the right of the accused to a public trial has become well rooted in our common-law heritage ( In re Oliver, 333 U.S. 257, 266, and n. 14, 68 S.Ct. 499, 504, and n. 14, 92 L.Ed. 682; see, Richmond Newspapers v. Virginia, 448 U.S. 555, 566-569, 100 S.Ct. 2814, 2821-23, 65 L.Ed.2d 973; People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335; People v. Jelke, 308 N.Y. 56, 61, 123 N.E.2d 769; see generally, Radin, Right to a Public Trial, 6 Temp LQ 381). "From these early times, although great changes in courts and procedure took place, one thing remained constant: the public character of the trial at which guilt or innocence was decided" ( Richmond Newspapers v. Virginia, 448 U.S. 555, 566, 100 S.Ct. 2814, 2822, supra ). Not only are members of the press and public extended a constitutional right of access--implicit in the First Amendment ( Richmond Newspapers v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 2829,supra; Matter of Associated Press v. Bell, 70 N.Y.2d 32, 37, 517 N.Y.S.2d 444, 510 N.E.2d 313)--but a defendant has the constitutional right to a public trial explicitly guaranteed in the Sixth Amendment (U.S. Const. 6th Amend. ["In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"]; see, Waller v. Georgia, 467 U.S. 39, 47, 104 S.Ct. 2210, 2215-16, 81 L.Ed.2d 31). This mandate is binding on the States through the Fourteenth Amendment ( see, Duncan v. Louisiana, 391 U.S. 145, 148, 88 S.Ct. 1444, 1446-47, 20 L.Ed.2d 491; Matter of Oliver Postel, 30 N.Y.2d 171, 178, 331 N.Y.S.2d 407, 282 N.E.2d 306), and in New York, the right is further protected by statute (see, Civil Rights Law § 12; Judiciary Law § 4 [subject to certain stated exceptions the "sittings of every court within this state shall be public"] ). ²

In contrast to the secrecy and concealment of Star Chamber trials, the salutary purposes of open access to criminal proceedings are many and universally acknowledged. Exposing the judicial process to the glare of public scrutiny inspires confidence in the administration of justice and the appropriateness of judicial remedies; it ensures the integrity of the process ( Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 605-606, 102 S.Ct. 2613, 2619-20, 73 L.Ed.2d 248; Richmond Newspapers v. Virginia, 448 U.S. 555, 569-573, 100 S.Ct. 2814, 2823-25, supra; People v. Jones, 47 N.Y.2d 409, 416-417, 418 N.Y.S.2d 359, 391 N.E.2d 1335, supra ). More importantly perhaps, the command that criminal trials be accessible to the public is for the benefit of the accused, " ' "that the public may see he is fairly dealt with and not unjustly condemned, and the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions" ' " ( Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2906, 61 L.Ed.2d 608; see also, In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, supra ["The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse"] ). It is both the fairness and the appearance of fairness that are sought. Publicity of criminal proceedings is also considered instrumental in fostering testimonial trustworthiness and in bringing notice of the proceedings to the attention of potential witnesses (People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769, supra; Tanksley v. United States (9th Cir.1944), 145 F.2d 58, 59). ³

Notwithstanding the immeasurable value to the defendant and to society of public accessibility to criminal proceedings, the mandate of a public trial has not been deemed absolute. That right, whether asserted by defendant or members of the public, must be reconciled with, and at times must yield to, other important rights and interests. In order to safeguard, for example, a defendant's equally fundamental rights to a fair trial and an impartial jury, it has been recognized that a court may exclude spectators from certain proceedings to avoid inflammatory pretrial publicity which could taint potential jurors ( Press-Enterprise Co. v. Superior Ct. [Press-Enterprise II], 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 [preliminary hearings]; Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, supra [suppression hearings]; Press-Enterprise Co. v. Superior Ct. [Press-Enterprise I], 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 [jury selection]; Matter of Associated Press v. Bell, 70 N.Y.2d 32, 38, 517 N.Y.S.2d 444, 510 N.E.2d 313, supra [suppression hearings]; Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 438, 423 N.Y.S.2d 630, 399 N.E.2d 518 [pretrial mental competency hearings] ). Similarly, the public may be excluded from a portion of the trial to protect the identity of an undercover agent ( see, e.g., People v. Hinton, 31 N.Y.2d 71, 73, 334 N.Y.S.2d 885, 286 N.E.2d 265), or to enable a child or emotionally disturbed witness to testify ( see, e.g., Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248, supra [child victim of sex crime]; People v. Hagan, 24 N.Y.2d 395, 300 N.Y.S.2d 835, 248 N.E.2d 588). These exceptions notwithstanding, the presumption of openness is not easily overcome: a closure order must be based upon specific findings that closure is necessary to preserve an overriding interest and is narrowly tailored to serve that interest ( Press-Enterprise II, 478 U.S. 1, 13-14, 106 S.Ct. 2735, 2743,supra; Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2214-15, supra; Press-Enterprise I, 464 U.S. 501, 510, 104 S.Ct. 819, 824, supra; Matter of Associated Press v. Bell, 70 N.Y.2d 32, 38, 517 N.Y.S.2d 444, 510 N.E.2d 313, supra ).

Relying on these principles and on People v. Venters, 124 A.D.2d 57, 511 N.Y.S.2d 283, supra, defendant challenges the closing of the courtroom doors during the court's charge to the jury, over defense objection, as violating his constitutional right to a public trial. In Venters, the First Department concluded that locking the doors during instructions for the single purpose of avoiding potential distraction violated a defendant's right to a public trial. That court found that the "very importance of the jury charge * * * is itself an argument for its immediate accessibility to the public" ( People v. Venters, 124 A.D.2d 57, 60, 511 N.Y.S.2d 283, supra ). Moreover, defendant argues, if the jury is distracted during the charge, that portion of the charge is easily repeated, whereas if jurors were distracted during the testimony of a key witness, reenactment of a response or a facial expression is not so readily accomplished. Accordingly, defendant urges the adoption of less onerous alternatives to address the concern of disruption as, for example, a sign posted outside the courtroom, or courtroom personnel stationed near the door, to assure unobtrusive entry and exit. Contending that there are no unusual circumstances necessitating closure in this case, and that the charge to the jury, in general, is not so unique a phase of the trial as to justify routine closure of the doors, defendant concludes that the hypothetical risk of distraction is insufficient and too speculative to overcome his right to insist on open doors.

Defendant's...