People v. Ramos

• Decision Date: 01 July 1997
• Citation: 662 N.Y.S.2d 739,90 N.Y.2d 490,685 N.E.2d 492
• Parties: , 685 N.E.2d 492 The PEOPLE of the State of New York, Respondent, v. Luis A. RAMOS, Appellant. The PEOPLE of the State of New York, Respondent, v. Robert AYALA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 739

662 N.Y.S.2d 739

90 N.Y.2d 490, 685 N.E.2d 492

The PEOPLE of the State of New York, Respondent, v. Luis A. RAMOS, Appellant.

The PEOPLE of the State of New York, Respondent, v. Robert AYALA, Appellant.

Court of Appeals of New York.

July 1, 1997.

Judah Maltz, Kew Gardens, for appellant in the first above-entitled action.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Nicole Beder, Steven J. Chananie and John Castellano, of counsel), for respondent in the first above-entitled action.

Robert Budner and Daniel L. Greenberg, New York City, for appellant in the second above-entitled action.

Robert M. Morgenthau, District Attorney of New York County, New York City (Marc Frazier Scholl, Mark Dwyer and Grace Vee, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

KAYE, Chief Judge.

Typically, in "buy-and-bust" cases, an undercover officer purchases a small quantity of narcotics from the defendant and a second officer thereafter makes the arrest. Where the People show that open-court testimony by the undercover officer during defendant's trial would jeopardize the undercover's safety and effectiveness, is it proper for the Trial Judge to close the courtroom during the testimony of that witness?

While we have already answered that question in the affirmative in People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027, these appeals present two related questions. First, were the factual showings of potential harm to active undercover witnesses sufficient? Second, assuming sufficient factual showings were made, did the trial courts err in failing to consider, on their own and on the record, possible alternatives that were less restrictive than courtroom closure during the witnesses' testimony? Concluding that both record and constitutional requirements were satisfied here, we affirm the Appellate Division orders upholding the convictions.

Facts

People v. Ramos

Defendant was charged with criminal sale of a controlled substance in the third degree for allegedly selling two vials of "crack" cocaine to undercover officers number 27296 and number 569 on August 18, 1993. The "buy" took place on the corner of Wyckoff Avenue and Palmetto Street in Brooklyn. The court held a pretrial Hinton hearing (31 N.Y.2d 71, 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) to determine the People's motion to close the courtroom during the testimony of the undercover officers.

Officer number 27296 testified that he was actively engaged in undercover work in the 104th police precinct in Queens County, which included the Brooklyn site of defendant's arrest. He had worked in this location several times during the past month and expected to return there that day or the next. The officer had, in the past, seen former "buy" subjects outside and around the courthouse, and he had several cases pending in the court, including some in the very same courtroom. He testified that he feared for his safety should his identity as a police officer be revealed and that he took certain measures to protect his anonymity, including riding to court in an unmarked car and using a private entrance to the courthouse. While making undercover buys in the past, the officer further testified, he had been recognized and his safety compromised. No one connected with the defendant or any pending cases, however, had threatened him.

Officer number 569 also worked undercover in the 104th precinct. He had operated there the preceding week and planned to return that evening or the next day. He had, at times, observed individuals from whom he had purchased drugs in an undercover capacity on Queens Boulevard and, like number 27296, had seen the targets of prior undercover investigations in and around the courthouse. Number 569 had approximately a dozen cases pending in the court, and he utilized the same measures specified by number 27296 to conceal his identity upon entering the courthouse. He, too, feared that he would be in danger if his true identity were discovered. Number 569 specifically testified that he had been threatened at gunpoint when a former subject discovered that he was a police officer.

The trial court noted that the facts concerning the two officers were very similar--the officers worked in the same area of Queens, had open cases pending in the court and had seen "buy" subjects in the proximity of the courthouse. Citing People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027, supra, however, the court refused to order closure based on those facts alone.

Instead, with regard to number 27296, the trial court ordered partial closure, allowing any individuals connected with the cases on the court's calendar to be present unless the prosecutor could establish that those cases involved this undercover officer. Any strangers unconnected with court business were excluded, and a guard was stationed at the door to enforce this order. The court further suggested that the officer could wear dark glasses or don any other disguise. Defense counsel, however, immediately protested that he wished to be notified in advance if the officer intended to conceal his identity.

The trial court found closure warranted during the testimony of undercover number 569. According to the court, the distinguishing factor was that number 569 had in fact been threatened by a former subject. The transcript of both officers' testimony remained available to the public.

The remaining witnesses, which included a detective, a New York City employee and a police chemist, testified in open court. Defendant was convicted of the sale charge, and the Appellate Division affirmed.

People v. Ayala

On September 23, 1993, defendant was arrested as part of a buy-and-bust operation for selling a $10 bag of heroin to an undercover officer at Clinton and East Houston Streets in Manhattan. He was charged with criminal sale of a controlled substance in the third degree. The People sought to close the courtroom during the officer's testimony.

The undercover officer testified at the Hinton hearing that he had been working in the Manhattan South Narcotics and Guns Unit for the past 21 months. He was currently active in the 5th, 7th and 9th precincts, where he had operated in the past two weeks and expected to return the following week. The 5th precinct included the courthouse and the 9th encompassed the site of defendant's buy and bust. The officer had 15 to 20 ongoing investigations in these three precincts.

The officer claimed that it would jeopardize his safety and impede his effectiveness should his name or identity be made public. Although he had previously been threatened in front of the courthouse by a defendant in an unrelated case, he had not received any threats from anyone connected to this case.

The trial court ordered the courtroom closed during the witness' testimony, pointing out that he was presently active in the same location where the arrest occurred and had 15-20 active cases in that area. In reaching this conclusion, the court noted that the officer had entered the courtroom through the Judge's private entrance. Defense counsel never suggested any alternatives to closing the courtroom, nor did the court expressly consider any. As in Ramos, the People did not seek to suppress the minutes of the officer's testimony.

The courtroom remained open during the testimony of the remaining prosecution witnesses--three police officers and a police chemist. Defendant was convicted, and the Appellate Division affirmed.

Discussion

A criminal defendant's right to a public trial (U.S. Const. 6th Amend.; Civil Rights Law § 12; Judiciary Law § 4), though fundamental, is not absolute. Rather, trial courts possess "inherent discretionary power" to exclude members of the public from the courtroom (People v. Hinton, 31 N.Y.2d at 73-74, 75, 334 N.Y.S.2d 885, 286 N.E.2d 265, supra; see, People v. Martinez, 82 N.Y.2d at 441, 604 N.Y.S.2d 932, 624 N.E.2d 1027, supra). There remains, however, a presumption of openness. Consequently, the right to an open trial may yield to other rights or interests in rare circumstances only, and "the balance of interests must be struck with special care" (Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31; see also, People v. Martinez, supra, at 441, 604 N.Y.S.2d 932, 624 N.E.2d 1027; People v. Hinton, supra, at 75-76, 334 N.Y.S.2d 885, 286 N.E.2d 265).

In Waller v. Georgia, 467 U.S. at 48, 104 S.Ct. at 2216, involving a suppression hearing in a gambling case, the United States Supreme Court held that closure must meet a four-part standard to comport with the requirements of the Sixth Amendment:

"[T]he party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure."

Defendants here urge that the People failed to establish a sufficient likelihood of prejudice to an overriding interest to warrant closing the courtroom during the testimony of the undercover officers. Even if this initial requirement were satisfied, the parties raise the additional question whether the trial courts adequately fulfilled their duty under Waller to consider alternatives to excluding the public. We consider each contention in turn.

Likelihood of Prejudice to an Overriding Interest

The essential first step is a sufficient trial record to establish a substantial probability of prejudice to an overriding interest in the event of open-court testimony. Clearly in buy-and-bust cases that requires more than conclusory assertions that the officer remains an active undercover and fears for his or her safety.

Analysis begins with our decision in People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932...