People v. Andrew Moss and People v. Martin Johnson


AD1 order dated November 22, 2011, affirming judgment of conviction. Decision below: 89 A.D.3d 600, 933 N.Y.S.2d 258. Ciparick, J., granted leave March 13, 2012.

ISSUES PRESENTED: (1) Whether the undercover officer’s Hinton hearing testimony established an overriding interest in closing the courtroom. (2) Whether the trial court discharged its obligation to consider "all reasonable alternatives" to closure by ignoring counsel’s proposal of an alternative (screening by court officer at courtroom door) but permitting defendant’s family members to attend. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)

Issues: (1) Whether there is an "overriding interest" in courtroom closure for an undercover narcotics officer who will continue to work "in the area" of the buy. (2) Whether, in considering whether to close the courtroom for the testimony of an undercover narcotics officer in a "buy and bust" case, the court must explicitly consider alternatives to closure, even if sua sponte.

Held: (1) Yes. (2) No, there is a special rule in "buy and bust" cases: the court will be deemed to have implicitly considered alternatives to closure if none are requested.

Cal Observes: In these two cases "boxed" with Echevarria, this ruling on implied consideration of alternatives to closure is an exercise in naked pragmatism. Whether out of a misguided sense of avoiding the "floodgates;" or for fear of angering the police unions; or out of a sense that there are no real, palatable alternatives to closure for a court to consider in a "buy and bust" case (despite the fact that judges since Presley v. Georgia consider them most of the time), a five to two majority carved out a "buy and bust" exception to the Supreme Court’s recent holding in Presley v. Georgia, that a court must consider alternatives to closure even if sua sponte. In a "buy and bust" case (only), the trial court will be deemed to have, impliedly, considered alternatives to closure. (Note that, in Moss, all seven judges voted to affirm since, according to the judges, when Mr. Moss’s lawyer affirmatively asked for "screening" as an alternative to closure, the trial court explicitly considered and rejected it. In Johnson (and Echevarria), however, counsel was silent as to alternatives, and that is where the judges were split.) The dissent said that the holding directly contravened Presley v. Georgia. No doubt certiorari petitions are being drafted.