People v Gray

People v Gray 2011 NY Slip Op 06291 Decided on August 18, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 18, 2011
Mazzarelli, J.P., Saxe, Renwick, DeGrasse, Richter, JJ.
4625 1514/09

[*1]The People of the State of New York, Respondent,

v

Antoine Gray, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(Jonathan M. Kirshbaum of counsel), and Chadbourne & Parke
LLP, New York (Marcelo Blackburn of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L.
Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 16, 2009, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 7½ years, unanimously reversed, on the law, and the matter remanded for a new trial.

The court deprived defendant of his right to a public trial when it ordered the courtroom closed to the public, including defendant's family and girlfriend, during the testimony of an undercover officer. As the Supreme Court held in Presley v Georgia (558 US__, __, 130 S Ct 721, 724 [2010]) and the New York Court of Appeals reiterated in People v Martin (16 NY3d 607, 612 [2011]), the trial courts are required to consider alternatives to closure even when they are not offered by the parties. Here, the court summarily rejected, without comment, defendant's request to allow the presence of interested family members, including his girlfriend, and the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings (see Presley (558 US at 48-49, 130 S Ct at 724-725; Waller v Georgia, 467 US 39, 48-49 [1984]). Accordingly, reversal is warranted (Presley, 558 US at __, 130 SCt at 725; Martin, 16 NY3d at 609).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 18, 2011

CLERK