PEOPLE v. BALDOMERO (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered March 11, 2005, convicting him of criminal sale of a controlled substance in or near school grounds, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

 In order to justify the closure of a courtroom during the testimony of an undercover police officer, the People “must first assert that a substantial probability of prejudice to a compelling interest will result from an open proceeding,” and then establish “a nexus between the particular overriding interest asserted and open-court testimony” in the particular case (People v. Jones, 96 N.Y.2d 213, 217, 726 N.Y.S.2d 608, 750 N.E.2d 524;  see Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31).   On this record, the People did not make a sufficient showing, and therefore the closure of the courtroom deprived the defendant of his Sixth Amendment right to a public trial (see People v. Vargas, 244 A.D.2d 367, 663 N.Y.S.2d 649;  People v. Bobo, 236 A.D.2d 417, 653 N.Y.S.2d 617).

At the Hinton hearing (see People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265, cert. denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273), the undercover officer testified that he no longer operated in the specific area of Brownsville where the alleged sale took place, but that he planned to return there as an undercover officer at an unspecified time “[i]n the future.”   He also testified that he anticipated returning to the larger “Brooklyn North” area in the “near future.”   Such unparticularized testimony fell short of meeting “Waller's demanding first prong” (People v. Ramos, 90 N.Y.2d 490, 506, 662 N.Y.S.2d 739, 685 N.E.2d 492, cert. denied 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413) of an “overriding interest that is likely to be prejudiced” by open-court testimony (Waller v. Georgia, supra at 48, 104 S.Ct. 2210).   Significantly, there was no evidence that the undercover officer had any lost subjects or open cases from the area of the defendant's arrest or the precinct within which the courthouse was located, that the officer was involved in any long-term undercover operation involving unapprehended subjects, or that any threats had been made against him or members of his family (cf. People v. Ramos, supra;  People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932, 624 N.E.2d 1027;  People v. Gonzalez, 253 A.D.2d 684, 677 N.Y.S.2d 565).

 Although the evidence against the defendant was overwhelming, a new trial is nevertheless required because, as the Court of Appeals has held, the unjustified closure of the courtroom during testimony at a criminal trial is not subject to the harmless error rule (see People v. Jones, 47 N.Y.2d 409, 415, 418 N.Y.S.2d 359, 391 N.E.2d 1335, cert. denied 444 U.S. 946, 100 S.Ct. 307, 62 L.Ed.2d 315).

The defendant's remaining contention has been rendered academic in light of our determination and, in any event, is without merit (People v. Utsey, 7 N.Y.3d 398, 404, 822 N.Y.S.2d 475, 855 N.E.2d 791;  People v. Castro, 28 A.D.3d 674, 816 N.Y.S.2d 104).