AD1 order dated November 15, 2011, affirming judgment of conviction. Decision below: 89 AD3d 545, 932 NYS2d 485. Ciparick, J., granted leave March 8, 2012.

ISSUES PRESENTED: (1) Whether, under Presley v. Georgia, a trial court considers "alternatives to closure" of the courtroom by limiting a closure to the duration of the testimonies of the two undercover officers who testified at the Hinton hearing, and/or by offering to allow in family members upon request. (2) Whether the court's agency charge was unbalanced. (Assigned counsel: Robert S. Dean, Center for Appellate litigation, 74 Trinity Place, 11th Floor, NYC 10006).

Issues: (1) Whether a judge, in considering whether to close the courtroom during the testimony of an undercover narcotics officer, must sua sponte and expressly consider alternatives to closure. (2) Whether a defendant entitled to an agency charge is entitled to a balanced one.

Held: (1) No, there is a "buy and bust" exception to the Supreme Court’s requirement, set out in Presley v. Georgia, that the judge consider alternatives on the record even if none are requested. (2) Yes, a defendant is entitled to a balanced agency charge.

Cal Observes: Henceforth, whenever litigants refer to the lax rules in New York on courtroom closure in "buy and bust" cases, they will inevitably cite Echevarria as shorthand for the three cases boxed together on this public trial issue. Yet while Mr. Echevarria did not prevail on his highfalutin’ public trial claim, he did win a new trial on his garden-variety agency charge point. Echevarria, a strung-out drug addict, agreed to buy four zips of crack for a (ostensibly) fellow addict from his local supplier if he could keep one of the zips. Although the trial judge reluctantly agreed to charge agency, the charge mentioned only factors which would "negate" the defense, and no positive ones. The First Department, unanimously, thought this charge just fine, basically because defendant, having made a 25% (!!) profit on the transaction, was not even entitled to an agency charge in the first instance. Yet all seven judges of the Court of Appeals had no problem seeing the defendant’s testimony as a classic agency scenario, nor did they show anything but disdain for the unbalanced charge. Trial attorneys planning to raise agency defense should take heart from his decision. Trial judges will ignore it at their peril.