People v. Echevarria

• Decision Date: 30 April 2013
• Citation: 966 N.Y.S.2d 747,989 N.E.2d 9,21 N.Y.3d 1,2013 N.Y. Slip Op. 03019
• Parties: The PEOPLE of the State of New York, Respondent, v. Alex ECHEVARRIA, Appellant. The People of the State of New York, Respondent, v. Andrew Moss, Appellant. The People of the State of New York, Respondent, v. Martin Johnson, Appellant.
• Court: New York Court of Appeals Court of Appeals

21 N.Y.3d 1

989 N.E.2d 9

966 N.Y.S.2d 747

2013 N.Y. Slip Op. 03019

The PEOPLE of the State of New York, Respondent,

v.Alex ECHEVARRIA, Appellant.

The People of the State of New York, Respondent,

v.Andrew Moss, Appellant.

The People of the State of New York, Respondent,

v.Martin Johnson, Appellant.

Court of Appeals of New York.

April 30, 2013.

Robert S. Dean, Center for Appellate Litigation, New York City, for appellant in the first above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City(David E.A. Crowley and Patrick J. Hynes of counsel), for respondent in the first above-entitled action.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York City(Justin M. Ross, Peter L. Simmons and Jennifer L. Colyer of counsel), and Richard M. Greenberg, Office of the Appellate Defender(Joseph M. Nursey of counsel), for appellant in the second above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City(Christopher P. Marinelli and Patrick J. Hynes of counsel), for respondent in the second above-entitled action.

Richard M. Greenberg, Office of the Appellate Defender, New York City(Lauren Stephens–Davidowitz of counsel), for appellant in the third above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City(David P. Stromes and Patrick J. Hynes of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

GRAFFEO, J.

The primary issue in each of these buy-and-bust cases is whether the trial court properly closed the courtroom to the general public during the testimony of undercover officers.We conclude that the limited closures comported with Sixth Amendment public trial principles, but a new trial is required in one case based on an erroneous jury charge on the agency defense.

I.Echevarria

DefendantAlex Echevarria was charged with criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds for selling three bags of crack cocaine to undercover officer number 0076 while undercover officer number 0064(the “ghost”) observed from a distance.The buy occurred on St. Nicholas Avenue near West 155th Street in northern Manhattan.The court held a pretrial hearing pursuant to People v. Hinton,31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265(1972) to determine whether public access should be restricted during the testimony of the two undercover officers on the ground that closure was necessary to protect their safety.

At the hearing, officer number 0076 testified that he remained active in the area of St. Nicholas Avenue, returning to the vicinity 15 to 20 times since defendant's arrest.He had a number of pending cases and “lost subjects”—sellers who had evaded apprehension—from St. Nicholas Avenue, and the officer expected to return there “[a]ny time soon.”He took precautions to conceal his identity during his frequent courthouse visits and had been threatened by a suspect on one occasion.Officernumber 0064 gave similar testimony regarding his undercover activities around St. Nicholas Avenue and West 155th Street.He too had been threatened, once with a knife, and a suspect had hit him in the head with a hard object a few weeks before the Hinton hearing.

Over defendant's objection, the court concluded that the courtroom should be closed to the general public during the testimony of both officers.The court reasoned that the officers had made a particularized showing that open court testimony would jeopardize their safety and ongoing investigations.The court noted that it would separately consider opening the proceedings to defendant's family members should they wish to attend.

At trial, officer number 0076 testified that defendant offered to take the officer's $40 to a nearby building to obtain crack cocaine.When the officer was hesitant about parting with his money, defendant gave him his wallet to hold as collateral.Defendant returned a short time later and handed the officer three bags of crack cocaine.Officernumber 0064 observed the transaction.Two arresting officers testified that, shortly after the sale, they searched defendant and found a bag of crack cocaine in his pocket.A criminalist stated that laboratory testing established that the three packets defendant handed to the officer contained narcotics and an expert witness for the People described the nature of typical street narcotics transactions.Defendant took the stand and testified that he was a drug addict who agreed to procure the drugs for the undercover officer because the officer told him that he could keep one bag of crack cocaine.

The trial was open to the public save for the testimony of the two undercover officers.The court gave the jury a charge on the agency doctrine.The jury rejected defendant's agency defense and convicted him as charged.He was later sentenced to two concurrent prison terms of 10 years followed by three years of postrelease supervision.The Appellate Division affirmed (89 A.D.3d 545, 932 N.Y.S.2d 485[1st Dept.2011] ), and a Judge of this Court granted defendant leave to appeal (18 N.Y.3d 957, 944 N.Y.S.2d 486, 967 N.E.2d 711[2012] ).

Moss

DefendantAndrew Moss was charged with criminal sale of a controlled substance in the third degree for selling 10 bags of crack cocaine to undercover officer number 2454.Undercover officer number 5986 acted as a ghost during the operation.The sale took place on the corner of West 135th Street and Broadway in northern Manhattan.Before trial, the court held a Hintonhearing to decide whether to close the courtroom during the testimony of the undercover officers as a safety measure.

Officernumber 5986 worked in an area that included the 30th precinct, which encompassed West 135th Street and Broadway, and testified that he had made 15 to 20 narcotics purchases in the immediate vicinity subsequent to defendant's arrest—one as recently as a week before the hearing.He had a number of pending cases and lost subjects from that area.The officer had also been threatened and searched by suspects on prior occasions and took steps to maintain his anonymity in the courthouse.

Officernumber 2454 primarily worked in the 33rd precinct—immediately adjacent to the 30th precinct—but remained active in the 30th precinct.He testified that he had made an additional 30 to 40 buys in the immediate vicinity of West 135th Street and Broadway after defendant's arrest and had 10 pending cases arising from purchases in that area.He had previously been threatened with guns, knives and scissors, and one suspect had placed a contract on his life.He had also been patted down 50 times by suspects and had encountered them in and around the courthouse on prior occasions.The officer therefore took steps to preserve his cover when he entered a courthouse to testify, including using a private entrance normally reserved for judges.

At the conclusion of the Hinton hearing, defense counsel objected to the courtroom closure.As an alternative, defense counsel suggested that the court could post a court officer at the door to “screen” visitors.In response to defense counsel's comment that courtroom closure was unnecessary because it was unlikely that anyone would attend, the court noted that probation violators frequently sat in the audience awaiting their proceedings.The court determined that it would close the courtroom during the testimony of both officers because the People had sufficiently demonstrated that open court testimony would jeopardize their safety.The court made an exception for family members, however, and defendant's mother attended the full trial.At trial, undercover officers, numbers 2454and5986, testified about the drug transaction and identified defendant as the seller.The arresting officer, a criminalist and an expert also testified for the People in open court.The jury convicted defendant as charged, and he was subsequently sentenced to 10 years' imprisonment with three years of postreleasesupervision.The Appellate Division affirmed (89 A.D.3d 600, 933 N.Y.S.2d 258[1st Dept.2011] ), and a Judge of this Court granted defendant leave to appeal (18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714[2012] ).

Johnson

DefendantMartin Johnson was charged with criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds for selling a small quantity of crack cocaine to undercover officer number 206 while undercover officer number 0014, the ghost, watched from a short distance away.The transaction took place on East 132nd Street and Park Avenue in East Harlem.The court conducted a pretrial Hinton hearing to ascertain whether it was necessary to close the courtroom during the officers' testimony to protect their safety.

At the hearing, officer number 206 stated that almost all of his 10 open cases involved buys “within the vicinity where this case took place.”He had been in the area of defendant's arrest as recently as two weeks before the hearing and expected to return there for future undercover work.In addition, he had 20 subjects who were still at large.He took precautions when entering the courthouse and had been threatened by drug dealers in the past.The officer had also been “struck up side the head” and had an object thrown at him.Officernumber 0014 similarly testified that he had a number of open cases emanating from “the same vicinity as where this case occurred.”He remained active in that area after defendant's arrest, participating in 50 additional buys during that time period, and expected to be assigned there for future investigations.He also took precautions to shield his identity when he visited courthouses and had been threatened with weapons multiple times while working undercover.On one occasion, he was forced to dive behind a car when a suspect opened fire on him.

After the hearing, defense counsel objected to the courtroom closure.The prosecutor...