People v. Cosentino

• Decision Date: 08 November 1993
• Citation: 198 A.D.2d 294,603 N.Y.S.2d 560
• Parties: The PEOPLE, etc., Respondent, v. Joseph COSENTINO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 560

603 N.Y.S.2d 560

198 A.D.2d 294

The PEOPLE, etc., Respondent, v. Joseph COSENTINO, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 8, 1993.

Rochman, Platzer, Fallick, Rosmarin & Sternheim, New York City (Barry M. Fallick and Bobbi C. Sternheim, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Steven Todd Vandervelden and Maryanne Luciano, of counsel), for respondent.

Before BALLETTA, J.P., and ROSENBLATT, MILLER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Silverman, J.), rendered May 31, 1991, convicting him of murder in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant and his codefendant Anthony Magana shot and killed John Petrocelli. Although no one actually saw the shooting, several witnesses saw them enter the apartment building where Petrocelli's girlfriend lived and heard the shots. Afterwards, they saw Petrocelli, who was bleeding, run out of the building followed by the gun-wielding defendant and his codefendant.

The defendant's first trial ended in a mistrial. The wives of the defendant and his codefendant and the defendant's son were barred from the second trial because of the disturbance that they had created at the first trial when the jury returned with a verdict. Apparently, as a result of that disturbance, two jurors changed their votes, and a mistrial was declared.

On appeal, the defendant contends, inter alia, that he was deprived of his right to a public trial. The right to a public trial has always been recognized as subject to the inherent power of trial courts to administer the activities of the courtroom. Suitably within the trial court's discretion is the power to monitor admittance to the courtroom, as the circumstances require, in order to prevent overcrowding, to accommodate limited seating capacity, to maintain sanitary or health conditions and, generally, to preserve order and decorum in the courtroom (see, People v. Colon, 71 N.Y.2d 410, 416, 526 N.Y.S.2d 932, 521 N.E.2d 1075, cert. denied, Colon v. New York, 487 U.S. 1239, 108 S.Ct. 2911, 101 L.Ed.2d 943; People v. Glover, 60 N.Y.2d 783, 469 N.Y.S.2d 677, 457 N.E.2d 783, cert. denied, Glover of New York, 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 825; People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769; People v. Miller, 257 N.Y. 54, 60, 177 N.E. 306). Accordingly, it has been recognized that spectators can be excluded throughout a trial when they are unruly and disruptive (see, People v. Jones, 82 A.D.2d 674, 678, 442 N.Y.S.2d 999).

Here, the trial court's exclusion of three family members did not constitute an improvident exercise of discretion or a denial of the defendant's right to a public trial. The trial court, having presided over the previous trial on the same charges, witnessed the unruly and disruptive...