AD1 order dated June 20, 2013, affirming judgment of conviction. Decision below: 107 AD3d 580, 967 NYS2d 378. Smith, J., granted leave December 19, 2013.

ISSUES PRESENTED: (1) Whether, by discharging a juror, who called in sick, prior to the arrival of defendant’s counsel, the court violated the defendant’s right to counsel. (2) The summary denial of a suppression hearing based on defendant’s failure to contest the People’s factual allegations. (3) Closing the courtroom during the testimony of undercover officers without expressly considering alternatives. (Assigned counsel: Steven Banks, Legal Aid Society, Criminal Appeal Bureau, 199 Water Street, NYC 10038.)

Issues before the Court:

(a) Whether the trial court committed a mode-of-proceedings error by replacing a sick juror with an alternate outside of counsel’s presence.  (b) Whether the court’s closure of the courtroom during testimony of two undercover narcotics officers, without sua sponte considering alternatives to closure, violated defendant’s right to a public trial.   (c)Whether the motion to suppress evidence was properly denied without a hearing.  

 

Held: 

(a) By a vote of 4 to 3, the Court held that there was no mode-of-proceedings error.  Although defense counsel was not present when the court, prosecutor, and co-counsel discussed whether to replace the sick juror, he was present when the replacement actually occurred.  Therefore, counsel could have objected if he did not like the court’s ruling. (b) As to the public trial issue, the court unanimously adhered to its prior decision in People v. Echevarria, 21 N.Y.3d 1, 18 (2013), that, in the buy-and-bust closure context, the court is assumed to have implicitly considered alternatives to closure.  (c) As to the lack of a suppression hearing, the Court unanimously held to its previous ruling that, where the allegation is that the defendant committed a crime well prior to his arrest, alleging merely that the defendant had committed no crime just prior to arrest was insufficient to get a hearing.   

 

CAL Observes:

Notwithstanding the close vote on the mode-of-proceedings issue, the result in this case is governed by a peculiar set of facts.  More interesting is what is going on in the public trial arena.  The defendant raised the issue in this appeal solely in order to exhaust the question for cert-petition purposes; there was no hope that the Court would reverse itself about Echevarria.  Since Echevarria would appear to be directly contrary to  Presley v. Georgia, 558 U.S.209 (2010), which requires that the court expressly and sua sponte consider alternatives to closing the courtroom, it will be interesting to see if the United States Supreme Court finally bites.