People v. Gross

179 A.D.2d 138, 583 N.Y.S.2d 832, 20 Media L. Rep. (BNA) 1091, 1992 N.Y. App. Div. LEXIS 6099
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 16, 1992
StatusPublished
Cited by7 cases

This text of 179 A.D.2d 138 (People v. Gross) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gross, 179 A.D.2d 138, 583 N.Y.S.2d 832, 20 Media L. Rep. (BNA) 1091, 1992 N.Y. App. Div. LEXIS 6099 (N.Y. Ct. App. 1992).

Opinion

OPINION OF THE COURT

Milonas, J. P.

The Trial Judge’s decision to close the courtroom to the public during the testimony of the undercover officer was not, under the circumstances herein, improper. In that regard, the following exchange took place when the prosecutor made his application for closure:

"ada: Your Honor, I spoke to the witness in this case, who is an undercover officer, female—

"the court: Jacqueline Sanchez.

"ada: and she currently works in the Bronx Tactical Narcotics Team and—

"the court: TNT.

"ada: Bronx TNT and she’s still working on the street, in the field and in fact—

"the court: In the field or undercover?

"ada: As an undercover.

"the court: All right.

"ada: And she indicated to me that she was — she would be very reluctant to testify unless the courtroom is closed to any and all individuals, other than the defendant and court personnel and at this time I am asking Your Honor to close the courtroom to people, other than the court personnel and the defendant.

"the court: Mr. Blitz?

"mr. blitz: I would respectfully object to that, Your Honor. This is a public trial and * * * there is nobody in the courtroom except the court personnel and the defendant and myself.

[140]*140"the court: Let me say at this time there is nobody here but—

"mr. blitz: And the clerk.

"the court: This is a drug part and I do have two other cases on today and I did ask one defendant * * * to come back at two o’clock and I have another case here * * * which I believe is a defendant who is not incarcerated and should be coming in and my part basically is a long-term narcotics part and almost exclusively I might add all defendants coming into this part are accused of either possession, of possession of or felony sale of drugs and felony possession and sale * * * So for that reason, it is likely that someone could come in here who might have dealt with the undercover or who might deal with her in the future. So I feel under the circumstances, I will close the courtroom during her testimony.

"mr. blitz: I respectfully except.

"the court: Okay, bring down the jury.”

The People then called Officer Jacqueline Sanchez to the stand. In response to the prosecutor’s inquiries, she explained that she had been a police officer for 4 Vi years during which time she was assigned first to Bronx Narcotics and then to the Major Case Unit. At Bronx Narcotics she worked undercover but the nature of her duties at the Major Case Unit, to which she was transferred subsequent to her buy and bust in the present matter, is not specified in the record. Thus, it is uncertain whether Officer Sanchez was still involved as an undercover with illicit drug activities. In any event, as of the date of the trial, she had made over 150 buys. She described her undercover duties as requiring her "to dress like an undercover and go to drug locations, known drug locations and attempt to purchase narcotics from any individuals who are selling narcotics.” She "received training in One Police Plaza, prior to becoming an undercover. They teach you how to dress like an undercover, how to act as an undercover, different types of narcotics, what the names are, how to identify individuals that are selling narcotics, how you know [to] go into a narcotic location and act like you belong there, as an undercover.”

It is significant that defense counsel, who confined himself to registering a single general objection, did not request permission to question Officer Sanchez before the court rendered its decision on the People’s motion for closure. Defendant’s lawyer also made no effort, once she took the stand, to [141]*141ascertain whether she was still engaged in undercover work in the Major Case Unit so that he could renew his objection to closure in the event that her duties had changed. Yet, defendant urges that his conviction be reversed for no other reason than the trial court’s failure to make a more thorough inquiry notwithstanding that Officer Sanchez’s employment as a major undercover operative was never contradicted. In that regard, there is no legal authority that mandates such a result.

In People v Clemons (78 NY2d 48, 52), the Court of Appeals held that closure was improper where, in a rape prosecution, "closure was ordered solely on the basis of a brief colloquy between the presiding Judge and counsel during which the prosecutor merely informed the court that the complainant desired that the courtroom be closed while she testified because of the subject matter of her testimony”. Unlike the situation at issue here, where there was real concern about both the physical safety of the undercover officer and the continuing viability of other cases in which she was expected to testify, People v Clemons (supra) concerned only the negative psychological or emotional impact claimed by the witness therein if she were compelled to testify in open court. In that connection, the Court of Appeals observed, closure demanded "a more careful balancing and weighing of the competing interests” (People v Clemons, supra, at 53) than the extremely limited examination conducted by the Trial Judge.

Similarly, People v Kin Kan (78 NY2d 54) is inapplicable to the present matter. In that case, the trial court directed that the courtroom be closed to all spectators, including defendant’s family, during the testimony of the cooperating accomplice and two undercover police officers. The Court of Appeals determined that excluding family members was contrary to all four of the prerequisites enunciated by the United States Supreme Court in Waller v Georgia (467 US 39) for assessing the propriety of closure, as follows: "(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) the trial court must make findings adequate to support the closure” (People v Kin Kan, supra, at 58). Most particularly, the expulsion of everyone during the accomplice’s testimony was, the Court of Appeals concluded, broader than constitutionally acceptable since there was no justification for disallowing the presence of defendant’s family in the absence of [142]*142any evidence that her family had ever attempted to intimidate or harass the accomplice. In contrast, the instant case involves the closure of the courtroom doors of a narcotics part to prohibit access to the general public during the testimony of the undercover officer in order to protect her confidentiality. There was certainly no question of ejecting defendant’s family or anybody else having a personal interest in the proceedings, and it is difficult to perceive how the court’s decision to preclude general admission to a narcotics part while the undercover took the stand was prejudicial to defendant.

In People v Jones (47 NY2d 409), the Court of Appeals specifically considered the issue of the appearance of an undercover agent when it could endanger his or her life or seriously damage other investigations.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Rodriguez
2018 NY Slip Op 5115 (Appellate Division of the Supreme Court of New York, 2018)
People v. Nunez
127 A.D.3d 513 (Appellate Division of the Supreme Court of New York, 2015)
People v. Melendez
269 A.D.2d 292 (Appellate Division of the Supreme Court of New York, 2000)
People v. Pepe
235 A.D.2d 221 (Appellate Division of the Supreme Court of New York, 1997)
People v. Herrera
211 A.D.2d 530 (Appellate Division of the Supreme Court of New York, 1995)
People v. Parker
194 A.D.2d 335 (Appellate Division of the Supreme Court of New York, 1993)
People v. Blakley
184 A.D.2d 645 (Appellate Division of the Supreme Court of New York, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
179 A.D.2d 138, 583 N.Y.S.2d 832, 20 Media L. Rep. (BNA) 1091, 1992 N.Y. App. Div. LEXIS 6099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gross-nyappdiv-1992.