CITY OF NEW YORK v. THREE GOOD FELLOWS INC (2004)

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 20, 2003, which denied plaintiff's motion to allow its undercover witnesses to testify in a manner that would prevent the revelation of their identities, unanimously reversed, on the law and the facts, without costs, the motion granted, and the matter remanded for further proceedings consistent herewith.

In this in rem nuisance abatement action, plaintiff City of New York alleges that the subject night club is the scene of ongoing and pervasive illegal narcotics activity.   The City, intending to prove the existence of such activity through the testimony of active undercover police officers, moved to allow the witnesses to testify in a manner that would preserve their anonymity.   The City suggested that this goal could be achieved without closing the courtroom if the witnesses were permitted to testify while sitting behind a screen, while wearing a disguise, or while facing away from the courtroom audience.   Supreme Court denied the motion.

We reverse.   The City's submissions establish the existence of reasonable concern for the safety and continued effectiveness of the officers in the event their identities are exposed as a result of their testimony in this action.   In this regard, we note that the officers continue to conduct undercover operations in the vicinity of the subject night club, and that the club's popularity (reportedly 4,000 patrons nightly) suggests that the proceedings may receive significant public attention.   Moreover, defendants have not demonstrated any legitimate countervailing interest in disclosure of the witnesses' identities.   Accordingly, on remand, the court is directed to determine what narrowly tailored measures, short of closing the courtroom, will be employed to permit the undercover witnesses to testify without revealing their identities (see People v. Sanabria, 301 A.D.2d 307, 308, 750 N.Y.S.2d 604, lv. denied 99 N.Y.2d 632, 760 N.Y.S.2d 114, 790 N.E.2d 288).