Capital Newspapers Division of Hearst Corp. v. Moynihan

125 A.D.2d 34, 512 N.Y.S.2d 266, 13 Media L. Rep. (BNA) 2360, 1987 N.Y. App. Div. LEXIS 40597

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1987
• Status: Published

Opinions

OPINION OF THE COURT

Mikoll, J.

Proceeding No. 1 involves Dawn Cruickshank, who was convicted of manslaughter in the first degree. She was sentenced to 2V$ to 7 years’ imprisonment. This court vacated the conviction and, as a matter of discretion, found Cruickshank to be a youthful offender. The case was remitted to the County Court of Saratoga County to "fix a reasonable definite term of incarceration along with a probationary period which includes the necessary counseling” (People v Cruickshank, 105 AD2d 325, 336). The Court of Appeals affirmed (People v Dawn Marie C., 67 NY2d 625). Respondent G. Thomas Moynihan, Saratoga County Judge, conducted a closed resentencing hearing upon remittal. No motion was made for closure in open court nor was petitioner offered an opportunity to be heard on whether the resentencing proceedings should be open to the press or public. It also was not given a transcript of the proceedings. Petitioner commenced proceeding No. 1 in this court to compel respondent Moynihan to release that part of the resentencing transcript which sets forth Cruickshank’s sentence or to provide notice of that sentence and to declare that the closure of the proceedings was illegal.

Proceeding No. 2 concerns the sentencing of four persons who pleaded guilty in Albany County Court to the crime of arson in the second degree. Each defendant requested youthful offender status and closure of subsequent proceedings. The People opposed these motions in three of the cases. Respondent John G. Turner, Jr., Albany County Judge, granted youthful offender status in all four matters and, in his decisions, stated that once a youthful offender "adjudication” was made CPL 720.35 operated so that further proceedings could be held in private. Upon finding such person to be a youthful offender in open court, respondent Turner adjourned each case for sentencing proceedings to be held in his chambers in private. No opportunity was afforded the People to oppose the youthful offender motions in open court.

* Petitioner commenced proceeding No. 2 in this court to compel respondent Turner to provide that part of the sentencing transcripts which set forth the sentences or to provide notice to petitioner of those sentences, and for a declaration that respondent Turner acted illegally in closing the sentencing proceedings.

Respondents Turner and Moynihan (hereinafter respondents) erred in closing the sentencing proceedings in each case without first holding a hearing as to whether closure was necessary. Respondents should have followed the procedures set forth in Matter of Westchester Rockland Newspapers v Leggett (48 NY2d 430). Respondents should further disclose the sentences pronounced against the defendants in the underlying cases. However, petitioner’s request to release portions of the sentencing transcripts should be denied.

Petitioner’s contention that CPL article 720, dealing with youthful offender procedures, does not require closure is correct. The sealing provisions of CPL 720.35 (2), which require that all official records and papers relating to a youth adjudicated a youthful offender be confidential and not made available except in specific cases, do not require that the proceedings be closed. These sealing requirements operate only upon a youthful offender adjudication. CPL 720.10 (6) defines a youthful offender adjudication as being "comprised of a youthful offender finding and the youthful offender sentence imposed thereon” and that such adjudication "is completed by imposition and entry of the youthful offender sentence”. Thus, since there had been no sentencing prior to closure in the cases underlying these proceedings, CPL 720.35 (2) did not come into operation. CPL 720.35 (2), which provides that all official records and papers "are * * * not [to] be made available”, does not require the exclusion of the press and public from proceedings. The proceedings themselves are generally open to the public (see, Levine, The Youthful Offender under the New York Criminal Procedure Law, 36 Alb L Rev 241, 255).

CPL 720.15 (2) authorizes closure in youthful offender proceedings and is applicable in the cases at bar. CPL 720.15 (3) provides, inter alia, that when a felony charge is pending, closure is not authorized. This section was enacted to subject "felony offenders potentially treatable as youthful offenders * * * to the full glare and publicity of adult felony offenders” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 720.15, p 226; emphasis in original). This suggests that the Legislature concluded that felonies are serious crimes to be dealt with in the public arena until such time as youthful offender status is granted. Once such status is found, which occurs upon or after conviction (CPL 720.20 [1]), the youth is a youthful offender, not a felon, so that discretionary closure provisions again apply.

The question of whether CPL 720.15 (2), which states that a trial court may close a hearing in its discretion, authorizes an automatic closure must be considered in the light of Federal and State case law.

The United States Supreme Court has concluded that there is both a 1st and 6th Amendment right to open criminal trials and related preliminary hearings (see, e.g., Press-Enterprise Co. v Superior Ct. of Cal. II, 478 US —, 92 L Ed 2d 1). This right is grounded upon the fact that such proceedings are traditionally open, as well as the role played by the presence of the public; to enhance the quality and safeguard the integrity of the system; foster the appearance of fairness; and serve a therapeutic value by giving the public an outlet for the emotional need to punish offenders (supra; see, Press-Enterprise Co. v Superior Ct. of Cal. I, 464 US 501; Globe Newspaper Co. v Superior Ct., 457 US 596; Richmond Newspapers v Virginia, 448 US 555). The Supreme Court, while it apparently has not had the issue directly before it, has indicated that its holdings do apply to civil matters (Richmond Newspapers v Virginia, supra, p 580, n 17). Our Court of Appeals has also recognized that New York proceedings are presumptively open, and has explicitly extended this right to all proceedings in New York courts, criminal and civil (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, supra). A motion for closure must be made in open court, the person seeking closure must show compelling reasons for it, affected members of the media should be given the opportunity to be heard, and reasons for closure should be given in open court (see, Matter of Herald Co. v Weisenberg, 59 NY2d 378; Matter of Westchester Rock-land Newspapers v Leggett, supra; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 381, affd 443 US 368). These procedures, at least as far as requiring a motion in open court and a statement in open court of the reasons for closure, are to be followed even where a statute indicates that a court "may” close proceedings, such as Judiciary Law § 4 (Matter of Westchester Rockland Newspapers v Leggett, supra, p 442) and CPL 180.60 (9) (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 180.60, p 142).

In the cases at bar, the procedures set forth in Westchester Rockland Newspapers (supra) have not been followed.

The Albany County District Attorney commenced a separate proceeding challenging the failure to afford him an opportunity to oppose youthful offender status in open court in these cases (see, Matter of Greenberg v Turner,.— AD2d — [decided herewith]).