PEOPLE v. THOMAS (2008)

Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Kron, J.), rendered January 25, 2005, and (2) an amended judgment of the same court, rendered February 9, 2006, convicting him of criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the appeal from the judgment rendered January 25, 2005, is dismissed, as that judgment was superseded by the amended judgment rendered February 9, 2006;  and it is further,

ORDERED that the amended judgment is affirmed.

Following a 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 Supreme Court directed that the courtroom be closed during the testimony of one undercover officer, and thereafter, upon the People's request and with the defendant's consent, the court also directed the closure of the courtroom during the testimony of a second undercover officer.   The defendant contends that the courtroom closure during the testimony of the first undercover officer was overly broad to the extent that it excluded Jean Fortunoff, whom he described as his “cousin,” and Kevin Jackson, whom he described as his “friend,” from remaining in the courtroom (see People v. Nieves, 90 N.Y.2d 426, 429, 660 N.Y.S.2d 858, 683 N.E.2d 764), and therefore denied him the right to a public trial (see U.S. Const. 6th Amend.;  Civil Rights Law § 12;  Judiciary Law § 4;  People v. Martinez, 82 N.Y.2d 436, 441, 604 N.Y.S.2d 932, 624 N.E.2d 1027).

Just prior to voir dire, after the court explained that only the defendant's family would be allowed to remain inside the courtroom during the testimony of the two undercover officers, the defense counsel requested that two of the defendant's “friends”-Jackson, who was already present in the courtroom, and Fortunoff, who was not present in the courtroom-not be barred from the courtroom.

On the record before us, the trial court did not improvidently exercise its discretion in excluding Fortunoff during the first undercover officer's testimony since the defense provided only a generic and perfunctory description of him as a “cousin” and since it was not clear that Fortunoff, who was not present at the time of the defense request, even intended to attend the trial (cf. People v. Garcia, 95 N.Y.2d 946, 947, 727 N.Y.S.2d 1, 750 N.E.2d 1049;  People v. Nieves, 90 N.Y.2d 426, 430-431, 660 N.Y.S.2d 858, 683 N.E.2d 764;  but see People v. Green, 221 A.D.2d 363, 633 N.Y.S.2d 381, 521).   Moreover, the defendant failed to establish that he and Fortunoff shared a “special relationship” beyond ordinary friendship (see People v. Nazario, 4 N.Y.3d 70, 72, 790 N.Y.S.2d 628, 823 N.E.2d 1274;  see People v. Council, 41 A.D.3d 313, 314, 837 N.Y.S.2d 565;  People v. Branch, 48 A.D.3d 826, 853 N.Y.S.2d 133).

Similarly, the defendant failed to demonstrate that Jackson was “linked to him by some tie of more significance than ordinary friendship” (People v. Nazario, 4 N.Y.3d 70, 74, 790 N.Y.S.2d 628, 823 N.E.2d 1274;  see People v. Branch, 48 A.D.3d 826, 853 N.Y.S.2d 133;  People v. Council, 41 A.D.3d 313, 314, 837 N.Y.S.2d 565) such as a “special relationship” sufficient to show that Jackson would provide him with “the kind of moral and emotional support that might be expected from a family member” (People v. Nazario, 4 N.Y.3d at 72, 790 N.Y.S.2d 628, 823 N.E.2d 1274).   Since the defendant failed to meet this threshold burden as to either individual, the People were not required to establish that either posed a particular threat to the first undercover officer, and accordingly, the court properly excluded both from the courtroom during the testimony of the first undercover officer (see People v. Sweeney, 25 A.D.3d 335, 336, 808 N.Y.S.2d 637).