People v. Kan

164 A.D.2d 771, 559 N.Y.S.2d 717, 1990 N.Y. App. Div. LEXIS 9068

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 2, 1990
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Allen Murray Meyers, J., at trial with a jury), rendered June-9, 1986, convicting defendant of criminal sale of a controlled substance in the first degree and sentencing her to an indeterminate term of 15 years to life, reversed, on the law and the matter is remanded for a new trial.

At trial the People proved that defendant and her codefendants, Harry Ip and an accomplice (the Accomplice), sold approximately two pounds of heroin to undercover police officers. The Accomplice pleaded guilty to criminal sale of a controlled substance in the first degree pursuant to a cooperation agreement he entered into with the People. Harry Ip appealed his conviction to this court, one of his chief contentions being that he was deprived of his constitutional right to a public trial when the courtroom was closed during the Accomplice’s testimony. We affirmed Ip’s conviction unanimously without opinion on February 23, 1988. (137 AD2d 968.) By order entered April 28, 1988, Judge Simons of the Court of Appeals denied Ip’s application for leave to appeal to that court (71 NY2d 969).

On August 1, 1988, Ip sought a writ of habeas corpus in the United States District Court for the Southern District of New York. His contention there was the same as that raised on appeal to this court, i.e., that his Sixth Amendment right to a public trial, had been violated by the closure of the courtroom during the Accomplice’s testimony. On March 1, 1989, the District Court granted Ip’s petition on the finding that his right to a public trial had indeed been violated. (Ip v Henderson, 710 F Supp 915 [SD NY 1989] [Leonard Sand, J.].) On October 3, 1989, the United States Court of Appeals for the Second Circuit summarily affirmed the District Court’s determination. (Ip v Henderson, 888 F2d 1376 [2d Cir 1989].)

Both Ip and defendant Kin were tried together, and she raises the same claim pertaining to wrongful courtroom closure which received full vindication when asserted by Ip in the Federal courts. It is no longer open to us to accept the People’s invitation. to find error in Judge Sand’s conclusion that the State court proceedings at the same trial fell below Federal constitutional standards. As properly asserted by defendant Kin, those arguments would lie only by way of reargument before the Second Circuit or by application for certiorari to the United State Supreme Court. Accordingly we reverse defendant Kin’s conviction and remand for a new trial.

In view of the foregoing, it is not necessary to reach defendant’s challenge to the competence of the Cantonese dialect interpreters who served at defendant’s trial. Suffice to say, on this branch of the appeal, we conclude that defendant has made an insufficient showing of prejudice to warrant a new trial. Concur—Milonas, Ellerin, Wallach and Rubin, JJ.