People v. Nicholas

• Decision Date: 08 July 1970
• Citation: 35 A.D.2d 18,312 N.Y.S.2d 645
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. NICHOLAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 645

312 N.Y.S.2d 645

35 A.D.2d 18

The PEOPLE of the State of New York, Respondent, v. Michael J. NICHOLAS, Appellant.

Supreme Court, Appellate Division, Third Department.

July 8, 1970.

Con G. Cholakis, Dist. Atty. of Rensselaer County, Troy, for respondent.

Ungerman & Harris, Albany (Joseph Harris, Albany, of counsel), for appellant.

Before HERLIHY, P.J., and AULISI, STALEY, COOKE and SWEENEY, JJ.

OPINION

COOKE, Justice.

This is an appeal from a judgment of the County Court of Rensselaer County, rendered March 10, 1967 upon a verdict convicting defendant of a violation of section 1141 of the former Penal Law, entitled 'Obscene prints and articles'.

During trial, after 50 reels of film which defendant allegedly sold had been received in evidence, six of them were exhibited to the jury, during which showing the general public was excluded over defense counsel's objection. While it is 'the law of the land' that no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal (Matter of Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 92 L.Ed. 682) and while in New York a speedy and public trial in all criminal prosecutions is guaranteed by statute (Civil Rights Law, § 12; Code Crim.Pro., § 8), subject to certain exceptions not relevant here (Judiciary Law, § 4), the public trial concept has never been viewed as imposing a rigid, inflexible straitjacket on the courts but, rather, it has been held to be subject to the inherent power of the court to preserve order in the courtroom, to protect the rights of parties and witnesses and, generally, to further the administration of justice (People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769, 772). The courtroom shades having been drawn and the lights turned off, it was not unreasonable for the court to exclude the general public merely during the film display for purposes such as to foster decorum and to protect the parties from prejudicial expressions that might emanate from the darkness. Defendant's contention that, when the courtroom was cleared of spectators, it was the equivalent of a charge that the motion pictures were obscene, is answered by the court's actual charge on that subject, which appellant's brief admits was correct. Certainly, defendant was not prejudiced by the clearance, in this respect, since he previously had offered in the jury's presence to stipulate that the films were obscene.

This case is strikingly different from Jelke where the public and press were excluded throughout the whole of the prosecution's case. In People v. Hagan, 24 N.Y.2d 395, 300 N.Y.S.2d 835, 248 N.E.2d 588, it was held recently that, if for a good reason directly related to the management of the trial, the courtroom is closed during the testimony of a witness and otherwise kept open to the press and public, a defendant is not necessarily deprived of a 'public' trial (pp. 397--398, 300 N.Y.S.2d pp. 836--837, 248 N.E.2d pp. 589--590). Here, the general public was not barred during the taking of any testimony, merely during the jury's examination of an exhibit which had been received in evidence. Even if there were error in the exclusion, it should be held beyond a reasonable doubt that it was harmless (Chapman v. California, 386 U.S. 18, 23, 24, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Hagan, Supra, 24 N.Y.2d p. 400, 300 N.Y.S.2d p. 839, 248 N.E.2d p. 591).

Since there had been neither a court dismissal of the earlier indictment nor an initial refusal of the grand jury to indict, the District Attorney was privileged to resubmit the matter, without court order and despite the pendency of the motion to dismiss, and the indictment under which defendant was convicted was not invalidity obtained (People v. Rodriguez, 11 N.Y.2d 279, 285--286, 229 N.Y.S.2d 353, 356--357, 183 N.E.2d 651, 653). It is presumed that the indictment was based upon legal and...