State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 41 The People &c., Respondent, v. Dwight Reid, Appellant.
Richard M. Greenberg, for appellant. Rachel Bond, for respondent. New York Civil Liberties Union, amicus curiae.
CANNATARO, J.:
On this appeal, we are asked to consider whether the trial court abused its discretion
in ordering the courtroom closed to the public and all interested spectators for the last four
days of defendant’s eight-day jury trial. Although the trial court summarized its reasons
for the closure, it held no inquiry on the record to determine the necessity and scope of the -1- -2- No. 41
closure (see generally People v Jones, 47 NY2d 409, 414 [1979], cert denied 444 US 946
[1979]). Nor was there any showing that the closure was justified under the criteria set
forth by the U.S. Supreme Court in Waller v Georgia (467 US 39 [1984]). Thus, on the
record before us, we conclude that defendant’s Sixth Amendment right to a public trial was
violated and he is entitled to a new trial.
Defendant was charged with second-degree murder and two counts of second-
degree weapon possession, both related to his alleged role in a fatal shooting. In the midst
of defendant’s jury trial, the People moved to close the courtroom, citing the fact that
photographs had been taken in the courtroom and posted on Instagram with the caption
“Free Dick Wolf”—which the prosecutor asserted was a reference to one of defendant’s
street names. After an off-the-record discussion with counsel, the court noted its concern
with the photographs, and added that
“[p]eople in the courtroom have been very intimidating. . . . They intimidated a court reporter already. They stare people down. They’re staring up here. I am closing this courtroom based on the fact that now there are pictures that were taken in this courtroom. And I know that pictures can be taken very [surreptitiously] with a cellphone. You can look like you’re looking at your cellphone when you’re really taking pictures. But clearly pictures were taken in this courtroom by someone who had to have been sitting in this courtroom and pictures were taken outside the court. I’m closing the courtroom.”
Defense counsel objected to the closure and proposed barring cellphones in the
courtroom as an alternative, stating that it would be unfair to exclude all spectators from
the trial based on the misconduct of a particular individual or group of individuals. The
court rejected counsel’s proposal and, in what it described as an effort to keep the jury from
-2- -3- No. 41
drawing negative inferences from the absence of any particular group of spectators, closed
the courtroom entirely, including to the victim’s family. The court explained that its
decision was based on the “cumulative” effect of various factors that created an atmosphere
of intimidation during the trial. Specifically, the court referred to unnamed spectators
associated with defendant who were acting, in the court’s view, in an “extremely
intimidating” manner. According to the court, there were “extremely long hard stares
coming from the audience.” The court also expanded upon its earlier statement regarding
the court reporter, explaining that the reporter had been “very shaken” by her interaction
days earlier with a group of unidentified spectators who purportedly asked if the reporter
was afraid to ride in an elevator with them. The court stated that the spectators were having
“a chilling [e]ffect,” and under the circumstances, the court did not “believe there [wa]s a
lesser remedy” than closure that could be imposed.
Over the following four days, the court was closed to the public for the testimony
of several witnesses, summations, and the jury’s verdict. At the conclusion of trial, the
jury found defendant guilty as charged. Defendant appealed, and the Appellate Division
affirmed, holding that “[t]he court’s midtrial closure of the courtroom to all spectators for
the remainder of the trial was a provident exercise of discretion under the extraordinary
circumstances presented” (203 AD3d 474, 475 [1st Dept 2022]). A Judge of this Court
granted defendant’s application for leave to appeal (38 NY3d 1152 [2022]).
The constitutional right to a public trial “‘has long been regarded as a fundamental
privilege of the defendant in a criminal prosecution’” (People v Roberts, 31 NY3d 406,
425 [2018], quoting People v Martin, 16 NY3d 607, 611 [2011]). The presumption is that -3- -4- No. 41
trials will be open to the public, and a trial court’s discretion to exclude the public from
criminal proceedings “must be exercised only when unusual circumstances necessitate it”
(Martin, 16 NY3d at 611 [internal quotation marks omitted]).
In Waller v Georgia, the Supreme Court of the United States set forth criteria for
determining when a courtroom may be closed over a defendant’s objection. Specifically,
“the party seeking to close the [proceedings] 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” (467 US at 48). Subsequently, in
Presley v Georgia, the Supreme Court emphasized that “the particular interest, and threat
to that interest, must ‘be articulated along with findings specific enough that a reviewing
court can determine whether the closure order was properly entered’” (558 US 209, 215
[2010], quoting Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501,
510 [1984]; see Hinton, 31 NY2d 71, 75 [1972], cert denied 410 US 911 [1973] [“special
circumstances . . . warranting an exclusion” of the public must be “demonstrated”]).
Waller’s requirements were not met in this case. The record indicates that some
unidentified spectators shared photos of the trial on social media, but the People did not
argue that the social media postings were intended to affect or influence the trial itself,
and it bears noting that the photos admitted by the People depicted only images of
defendant accompanied by court officers, not of jurors or witnesses. Moreover, although
the trial court indicated that the purpose of the closure was to prevent intimidation of
witnesses, court personnel and jurors by means of social media postings, “staring” in the
-4- -5- No. 41
courtroom, and other hostile interactions, the court failed to adequately describe the
particular acts and circumstances underlying its conclusion that intimidation was
occurring, or to identify the specific individuals who had engaged in such intimidation.
The record contains no discussion of the purported offenders, no evidence that any witness
was actually intimidated, and only vague descriptions of the purportedly intimidating
conduct.
Although the prevention of intimidation by spectators during trial may very well
be an “overriding interest” that can support courtroom closure (see People v Ming Li, 91
NY2d 913, 917 [1998]), it is incumbent on the trial court to ensure that the record
adequately justifies its concerns and demonstrates that the identified interest would be
jeopardized absent a closure. Where closure is warranted, it must be tailored to address
the overriding interest.
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State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 41 The People &c., Respondent, v. Dwight Reid, Appellant.
Richard M. Greenberg, for appellant. Rachel Bond, for respondent. New York Civil Liberties Union, amicus curiae.
CANNATARO, J.:
On this appeal, we are asked to consider whether the trial court abused its discretion
in ordering the courtroom closed to the public and all interested spectators for the last four
days of defendant’s eight-day jury trial. Although the trial court summarized its reasons
for the closure, it held no inquiry on the record to determine the necessity and scope of the -1- -2- No. 41
closure (see generally People v Jones, 47 NY2d 409, 414 [1979], cert denied 444 US 946
[1979]). Nor was there any showing that the closure was justified under the criteria set
forth by the U.S. Supreme Court in Waller v Georgia (467 US 39 [1984]). Thus, on the
record before us, we conclude that defendant’s Sixth Amendment right to a public trial was
violated and he is entitled to a new trial.
Defendant was charged with second-degree murder and two counts of second-
degree weapon possession, both related to his alleged role in a fatal shooting. In the midst
of defendant’s jury trial, the People moved to close the courtroom, citing the fact that
photographs had been taken in the courtroom and posted on Instagram with the caption
“Free Dick Wolf”—which the prosecutor asserted was a reference to one of defendant’s
street names. After an off-the-record discussion with counsel, the court noted its concern
with the photographs, and added that
“[p]eople in the courtroom have been very intimidating. . . . They intimidated a court reporter already. They stare people down. They’re staring up here. I am closing this courtroom based on the fact that now there are pictures that were taken in this courtroom. And I know that pictures can be taken very [surreptitiously] with a cellphone. You can look like you’re looking at your cellphone when you’re really taking pictures. But clearly pictures were taken in this courtroom by someone who had to have been sitting in this courtroom and pictures were taken outside the court. I’m closing the courtroom.”
Defense counsel objected to the closure and proposed barring cellphones in the
courtroom as an alternative, stating that it would be unfair to exclude all spectators from
the trial based on the misconduct of a particular individual or group of individuals. The
court rejected counsel’s proposal and, in what it described as an effort to keep the jury from
-2- -3- No. 41
drawing negative inferences from the absence of any particular group of spectators, closed
the courtroom entirely, including to the victim’s family. The court explained that its
decision was based on the “cumulative” effect of various factors that created an atmosphere
of intimidation during the trial. Specifically, the court referred to unnamed spectators
associated with defendant who were acting, in the court’s view, in an “extremely
intimidating” manner. According to the court, there were “extremely long hard stares
coming from the audience.” The court also expanded upon its earlier statement regarding
the court reporter, explaining that the reporter had been “very shaken” by her interaction
days earlier with a group of unidentified spectators who purportedly asked if the reporter
was afraid to ride in an elevator with them. The court stated that the spectators were having
“a chilling [e]ffect,” and under the circumstances, the court did not “believe there [wa]s a
lesser remedy” than closure that could be imposed.
Over the following four days, the court was closed to the public for the testimony
of several witnesses, summations, and the jury’s verdict. At the conclusion of trial, the
jury found defendant guilty as charged. Defendant appealed, and the Appellate Division
affirmed, holding that “[t]he court’s midtrial closure of the courtroom to all spectators for
the remainder of the trial was a provident exercise of discretion under the extraordinary
circumstances presented” (203 AD3d 474, 475 [1st Dept 2022]). A Judge of this Court
granted defendant’s application for leave to appeal (38 NY3d 1152 [2022]).
The constitutional right to a public trial “‘has long been regarded as a fundamental
privilege of the defendant in a criminal prosecution’” (People v Roberts, 31 NY3d 406,
425 [2018], quoting People v Martin, 16 NY3d 607, 611 [2011]). The presumption is that -3- -4- No. 41
trials will be open to the public, and a trial court’s discretion to exclude the public from
criminal proceedings “must be exercised only when unusual circumstances necessitate it”
(Martin, 16 NY3d at 611 [internal quotation marks omitted]).
In Waller v Georgia, the Supreme Court of the United States set forth criteria for
determining when a courtroom may be closed over a defendant’s objection. Specifically,
“the party seeking to close the [proceedings] 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” (467 US at 48). Subsequently, in
Presley v Georgia, the Supreme Court emphasized that “the particular interest, and threat
to that interest, must ‘be articulated along with findings specific enough that a reviewing
court can determine whether the closure order was properly entered’” (558 US 209, 215
[2010], quoting Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501,
510 [1984]; see Hinton, 31 NY2d 71, 75 [1972], cert denied 410 US 911 [1973] [“special
circumstances . . . warranting an exclusion” of the public must be “demonstrated”]).
Waller’s requirements were not met in this case. The record indicates that some
unidentified spectators shared photos of the trial on social media, but the People did not
argue that the social media postings were intended to affect or influence the trial itself,
and it bears noting that the photos admitted by the People depicted only images of
defendant accompanied by court officers, not of jurors or witnesses. Moreover, although
the trial court indicated that the purpose of the closure was to prevent intimidation of
witnesses, court personnel and jurors by means of social media postings, “staring” in the
-4- -5- No. 41
courtroom, and other hostile interactions, the court failed to adequately describe the
particular acts and circumstances underlying its conclusion that intimidation was
occurring, or to identify the specific individuals who had engaged in such intimidation.
The record contains no discussion of the purported offenders, no evidence that any witness
was actually intimidated, and only vague descriptions of the purportedly intimidating
conduct.
Although the prevention of intimidation by spectators during trial may very well
be an “overriding interest” that can support courtroom closure (see People v Ming Li, 91
NY2d 913, 917 [1998]), it is incumbent on the trial court to ensure that the record
adequately justifies its concerns and demonstrates that the identified interest would be
jeopardized absent a closure. Where closure is warranted, it must be tailored to address
the overriding interest. Here, the court ordered the broadest possible closure, completely
excluding all members of the public for the remainder of trial. On this sparse record the
closure was disproportionate in relation to the circumstances described.
Further, “trial courts are required to consider alternatives to closure even when they
are not offered by the parties” (Presley, 558 US at 214). Although a trial court need not
explicitly consider such alternatives on the record (see People v Echevarria, 21 NY3d 1,
15 [2013]), here, the court does not appear to have sufficiently considered whether less
drastic measures could have resolved troubling spectator behavior, such as addressing
those individuals or requesting that they alter their demeanor in the courtroom. Nor did
the court make additional efforts to identify particular offenders and exclude only those
-5- -6- No. 41
individuals from the courtroom.1
In short, the record before us does not demonstrate that “unusual circumstances
necessitate[d]” closure of the courtroom (Martin, 16 NY3d at 611 [internal quotation
marks and citation omitted]). Rather, the record demonstrates only a “mere possibility
that [an] interest might be compromised by open court testimony[, which] does not justify
abridgement of a defendant’s constitutional right to a public trial” (People v Ramos, 90
NY3d 490, 506 [1997]).
We emphasize that our decision should not be read as suggesting that a courtroom
can never be closed based on the trial court’s observations of intimidation (or other
prejudicial behavior) taking place in the courtroom. Trial courts retain “inherent
discretionary power . . . to close the courtroom” (Hinton, 31 NY2d at 75). However, that
discretion must be “sparingly exercised” and invoked “only when unusual circumstances
1 The Appellate Division incorrectly held that defendant “failed to preserve his arguments that the court should have considered certain other alternatives[] and conducted a Hinton hearing” (203 AD3d at 475). First, as we recognized in People v Alvarez (20 NY3d 75 [2012], certs denied 569 US 910, 947 [2013]), “[t]he obligation rests with the court to consider alternatives, even where the parties themselves do not offer any” (id. at 80; see also Presley, 558 US at 214). Nor was defendant required to expressly request a “Hinton hearing,” because a hearing is not mandatory in every case. A “Hinton hearing” is often required in cases where closure is sought to protect the identity of an undercover police officer (see People v Kin Kan, 78 NY2d 54, 56 [1991]; Jones, 47 NY2d at 414-415; Hinton, 31 NY2d at 74-76). However, we have never held that a formal hearing is required for every case in which circumstances might warrant closure (see Alvarez, 20 NY3d at 79; Martin, 16 NY3d at 611; Ming Li, 91 NY2d at 917; People v Joseph, 59 NY2d 496, 498 [1983]). To the contrary, we have explained that “there are times when careful inquiry directed at counsel, the witness, or even the spectators present in the courtroom might be enough” (Jones, 47 NY2d at 414). Defendant’s objection was sufficient to trigger the need for such an inquiry and preserve the issue for appeal. -6- -7- No. 41
necessitate it” (id. at 76; see Ming Li, 91 NY2d at 917). When such unusual circumstances
occur, it is incumbent on the court to ensure that the record adequately supports excluding
members of the public. Here, the court failed to create a sufficient record to justify a
complete closure of the courtroom and, as a result, the closure was not narrowly tailored
to the interests sought to be protected.
Defendant’s remaining argument is academic.
Accordingly, the order of the Appellate Division should be reversed and a new trial
ordered.
Order reversed and a new trial ordered. Opinion by Judge Cannataro. Chief Judge Wilson and Judges Rivera, Garcia, Singas and Troutman concur. Judge Halligan took no part.
Decided May 23, 2023
-7-