2003 NY Int. 64
CIPARICK, J.:
Defendant in this criminal action claims that various
ex parte proceedings deprived him of his constitutional rights to
the assistance of counsel and to confront and cross-examine
witnesses. He also asserts that closure of the courtroom during
the testimony of certain witnesses deprived him of the right to a
public trial. A court's discretion to conduct ex parte
proceedings and close a courtroom should be exercised only in the
most exceptional and unusual circumstances. After a careful
review of the sealed record in this case, we are satisfied that
exceptional circumstances are present here and conclude that
defendant's constitutional rights were not violated.
I.
The incident resulting in defendant's arrest arose from
an argument he had with one Jay Jones. The two were playing
basketball in a park in Manhattan and apparently were involved in
a dispute over a foul. There was evidence that defendant's
friend gestured to a person on the sidelines who left the park
and returned a short time later with a gun. Defendant was then
seen pointing the gun at Jones. Moments later Jones was shot
several times, and he died of his injuries approximately two and
one half weeks later. Defendant was indicted on one count of
murder in the second degree and one count each of criminal
possession of a weapon in the second and third degrees.
Before trial, the People moved for a protective order
pursuant to
Criminal Procedure Law § 240.50. In support of their
motion seeking to protect the identities of witnesses prior to
trial, the People noted defendant's criminal history, his
father's drug sale conviction and pending federal narcotics sale
indictment, his step-brother's convictions for attempted second
degree robbery and attempted murder, the defendant's family's
attempt to discourage potential witnesses to the instant crime,
and the lack of cooperation by the community into prior
investigations of crimes believed to have been committed by
defendant. The People requested that the hearing be held in
camera outside the presence of defendant or his attorney.
[1]
After
the hearing Supreme Court granted the People's motion and
directed that the identities of certain witnesses not be revealed
during voir dire, and that disclosure of relevant
Rosario
material be delayed and redacted to protect witnesses'
identities.
At trial, the People moved on four separate occasions
for closure of the courtroom during the testimony of certain
witnesses. Supreme Court conducted an ex parte hearing on each
occasion to determine whether the courtroom should be closed (
see
People v Hinton, ,
31 NY2d 71 [1972],
cert denied 410 US 911
[1973]). Defense counsel never proposed any less restrictive
alternative. At the first such hearing, Supreme Court ordered
the closure of the courtroom during the witness's testimony and,
to protect the witness's identity, allowed him to testify under
the fictitious name Steven Knight. The court also issued a
protective order as to his address and occupation. At subsequent
ex parte hearings, Supreme Court determined that the courtroom
would be closed for the testimony of two additional witnesses.
The People withdrew their application to close the courtroom for
the testimony of a fourth witness after his ex parte testimony.
In total, 17 witnesses testified -- 14 of them in open court.
After a jury trial, defendant was acquitted of second
degree murder, convicted of criminal possession of a weapon in
the second and third degrees, and sentenced as a second felony
offender. The Appellate Division affirmed, finding that the
hearings had been held ex parte “for legitimate and exceptional
security reasons,” and did not violate defendant's constitutional
rights because his guilt or innocence was not at issue at these
hearings, rather the safety of the witnesses, and his ability to
defend himself was not compromised (289 2 23, 24). The
Appellate Division also stated that it was proper for Supreme
Court to close the courtroom where “the People established an
overriding interest warranting closure” (289 2 at 24). A
Judge of this Court granted defendant leave to appeal and we now
affirm.
II.
We begin with defendant's claim that the exclusion of
counsel from the ex parte hearings constituted a violation of his
right to assistance of counsel. In
People v Castillo (,
80 NY2d 578, 586 [1992],
cert denied 507 US 1033 [1993]), finding
exceptional circumstances present, we upheld a defense counsel's
exclusion from suppression proceedings challenging the validity
of a search warrant, on the ground that disclosure of a witness's
identity would compromise the safety of the informant and future
investigations. Here too, there is ample evidence to support the
conclusion that the witnesses were in fear for their safety and
that exceptional circumstances prevailed. The record suggests
that defense counsel had previously represented defendant and
other members of his family on unrelated criminal matters. While
it is surely the better practice to allow defense counsel to
participate in these types of proceedings, under these
circumstances “[t]o include defense counsel, who might single-
mindedly conclude that a professional obligation bound him to
inform the client of the content of the proceedings * * * would
defeat the whole point of the legitimate [ex parte] request * *
*” (
People v Vargas, ,
88 NY2d 363, 379 [1996]).
Certainly ex parte hearings are not to be granted
lightly and are unwarranted and impermissible in the vast
majority of cases. On this record, however, Supreme Court
properly exercised its discretion and did not violate defendant's
right to assistance of counsel.
III.
Next, defendant alleges he was deprived of the right to
confront and cross-examine witnesses against him as he as well as
his attorney were excluded from the hearings. The first ex parte
hearing held prior to trial pursuant to
Criminal Procedure Law §
240.50(1), sought a protective order. By statute, a trial court
is authorized, in the interests of justice, to “permit a party to
[such] motion * * * or other affected person, to submit papers or
to testify ex parte or in camera” (CPL 240.90[3]). Upon our
review of the transcripts of the pre-trial ex parte proceeding,
we conclude that Supreme Court acted within its discretion when
it closed the courtroom for the hearing and ordered that the
identities of the civilian witnesses be protected by granting the
protective order and reserving for itself the authority to take
further measures necessary to protect the identities of the
civilian witnesses at trial.
Voir dire proceeded without naming the witnesses and
the trial ensued. At trial the People made four additional ex
parte applications seeking courtroom closure during the testimony
of particular witnesses. Defendant claims that his confrontation
rights were violated by these ex parte hearings. However,
counsel never proposed any less restrictive alternative that
would have allowed participation by the defense as, for example,
by requesting a redacted transcript, or submitting questions to
be put to the witness. A defendant's right to be present at
trial under the Confrontation Clause attaches when “witnesses or
evidence against him are being presented to the trier of fact”
(
People v Sprowal, ,
84 NY2d 113, 116-117 [1994], citing
Kentucky v
Stincer,
482 US 730, 739 [1987];
see also People v Hameed, ,
88 NY2d 232, 239 [1996],
cert denied 519 US 1065 [1997]). The
evidence at the ex parte hearings did not bear on defendant's
guilt or innocence but rather on the safety of the witnesses and
was unrelated to factual issues presented at trial. Furthermore,
defendant had a full opportunity to cross-examine each witness at
trial and was provided with relevant
Rosario material and
criminal histories. As such, defendant's rights under the
Confrontation Clause were not violated by his exclusion from the
ex parte closure hearings.
Under New York law, a defendant also has the more
comprehensive statutory right to be “present during the trial of
an indictment” (CPL 260.20). This Court has found that a
defendant's “presence is generally required even at * * *
ancillary proceedings so long as the defendant can potentially
contribute to the proceeding” (
Sprowal, 84 NY2d at 118). Here,
defendant's ability to contribute to the hearings on the issue of
whether the courtroom should be closed due to the fears of
particular witnesses is questionable. Supreme Court properly
balanced defendant's right to be present with the expressed valid
fears for witnesses' safety and properly exercised its discretion
in granting the People's requests.
Defendant also argues that he could not effectively
cross-examine Steven Knight because Knight's identity was kept
confidential and the defense did not have the opportunity to
investigate the witness and his reputation for truth and
veracity. Relying on
People v Goggins, (,
34 NY2d 163, 168,
cert
denied 419 US 1012 [1974]), defendant argues that an ex parte
hearing regarding the identity of a witness is permissible only
at pre-trial hearings when a defendant's guilt or innocence is
not at issue. However, the concerns present in
Goggins, which
addressed a defendant's right to learn the identity of a police
informant who would not be produced at trial, are not applicable.
Here, Knight testified at trial and defense counsel had an
opportunity to cross-examine him.
[2]
In addition, defendant does
not maintain that the People failed to advise him of bad acts
with which he could impeach Knight. Indeed, at trial the
prosecutor represented that Knight had no criminal record, and
that all
Rosario and
Brady material had been turned over to
defense counsel.
Knight's use of a pseudonym and the preclusion of
evidence regarding his address and occupation is not a per se
violation of defendant's confrontation clause rights under the
facts presented in this case. We have held that under certain
circumstances, a witness may be excused from giving pedigree
information if, among other things, answering would endanger the
witness (
see People v Stanard, ,
42 NY2d 74, 84,
cert denied 434 US 986 [1977]). In discussing the materiality of an undisclosed
witness at a pre-trial proceeding, we stated in
People v Andre W.
(44 2 179, 185-186 [1978]) that "a Judge should be conscious
that courts are not impotent to protect witnesses. For instance,
fictitious names may be employed during [a] hearing * * *." Some
Federal Circuits have also recognized that the defendant's right
to disclosure of certain information, such as an informant's name
or address, must be weighed against the personal safety of the
witness (
see e.g. United States v Rangel, 534 F2d 147, 148 [9th
Cir]
cert denied 429 US 854 [1976];
United States v Ellis, 468
F2d 638, 639 [9th Cir 1972];
United States v Twomey, 460 F2d 400,
401-402 [7th Cir 1972];
United States v Persico, 425 F2d 1375,
1383-1384 [2d Cir],
cert denied sub nom. McIntosh v United
States,
400 US 869 [1970];
United States v Palermo, 410 F2d 468,
472 [7th Cir 1969];
see also Beasley v Maryland, 271 Md 521, 318
A2d 501 [1974]).
Certainly here, where the scope of Supreme Court's
protective order encompasses "any further measure necessary to
protect the identities of civilian witnesses prior to and during
actual testimony," we are required to most carefully examine the
sealed record to determine if such an extraordinary measure as
allowing a witness to testify at trial using a fictitious name
was warranted. We conclude that Supreme Court properly exercised
its discretion in determining that the witness's concerns for
safety outweighed defendant's interest in obtaining information
concerning Knight's true identity for purely collateral
impeachment purposes.
IV.
Finally, the
Sixth Amendment right to a public trial,
while fundamental, is not absolute (
see People v Ramos, ,
90 NY2d 490, 497,
cert denied sub nom. Ayala v New York,
522 US 1002
[1997];
People v Martinez, ,
82 NY2d 436, 441 [1993];
People v Kin
Kan, ,
78 NY2d 54, 57 [1991]). Closure of the courtroom “is an
exceptional authority that must be 'sparingly exercised' only
when necessitated by 'unusual circumstances'” (
Kin Kan, 78 NY2d at 57, quoting
People v Hinton, 31 NY2d at 76). To determine
whether closure is appropriate, a four-part test must be
satisfied:
“the party seeking to close the hearing
must advance an overridinginterest that
is likely to be prejudiced, the closure
must be nobroaderthannecessary to
protect that interest, the trial court
must consider reasonablealternatives to
closing the proceeding, and it must make
findingsadequatetosupporttheclosure”
( Waller v Georgia, 467 US 39, 48 [1984]).
The evidence elicited at the hearings pertaining to the
potential witnesses' extreme fear of testifying in open court was
sufficient to establish an overriding interest, satisfying the
first prong of the Waller test ( see People v Ming Li, , 91 NY2d 913, 917 [1998]). The People made a factual showing that
defendant's right to a public trial was not being sacrificed for
less than “a substantial probability of prejudice to a compelling
interest” ( People v Jones, , 96 NY2d 213, 217 [2001]). The scope
of the closure was limited to the testimony of three civilian
witnesses who expressed legitimate fears of testifying in an open
courtroom. The remainder of the trial -- including the testimony
of 14 other witnesses -- was open to the public.
That Supreme Court did not explicitly consider
alternatives to closure -- the third Waller prong -- is not error
where the record was sufficient to support closure of the
courtroom and where defense counsel did not advocate for any less
restrictive options ( see People v Ramos, , 90 NY2d 490, 504-505;
People v Martinez, , 82 NY2d 436, 444; see also Ayala v Speckard,
131 F3d 62, 71 [2d Cir 1997], cert denied 524 US 958 [1998]). We
perceive no abuse of discretion by Supreme Court in ordering the
closure of the courtroom during the testimony of these three
witnesses who had established their specific and realistic fears.
In sum, defendant's claim of violation of his federal
and state constitutional rights to the assistance of counsel, his
right to confront and examine witnesses and to a public trial are
without merit in light of the safety concerns and exceptional
circumstances present here. Defendant's remaining contentions
are likewise without merit.
Accordingly, the order of the Appellate Division should
be affirmed.