THE PEOPLE &C., RESPONDENT, v. JUAN TOLENTINO, RESPONDENT-APPELLANT.
90 N.Y.2d 867, 684 N.E.2d 23, 661 N.Y.S.2d 593 (1997).
July 1, 1997
1 No. 153 SSM 12 (1997 NY Int. 135)
Decided July 1, 1997
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Jeffrey A. Tochner, for appellant.
Submitted by Pamela Tishman, for respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed and a new trial
ordered.
On October 25, 1991, defendant was arrested for allegedly selling
three grams of cocaine to an undercover officer at Broadway and 165th
Street in Manhattan. During trial, the prosecutor represented that the
officer might still be working undercover in the area of defendant's
arrest and had expressed concern that open-court testimony would
jeopardize both his safety and ongoing operations. The prosecutor
therefore moved to close the courtroom during the officer's testimony.
Defense counsel immediately objected, asserting defendant's right to a
public trial and arguing that the officer had not considered himself
in danger while waiting openly in the public hallways of the criminal
courthouse. Counsel also informed the court that defendant expected at
least one spectator, his girlfriend, who had been present throughout
the proceedings. Based solely on the prosecutor's representations and
without conducting a hearing, the trial court granted the application
to close the courtroom. The court made no further inquiry of the
prosecutor and no factual findings. When defense counsel then urged
that defendant wanted only to secure his girlfriend's presence, the
prosecutor consented to allowing her to remain in the courtroom during
the officer's testimony.
Defendant having timely objected to the People's request to close the
courtroom, the People, as the proponent of closure, were required to
"advance an overriding interest that (wa)s likely to be prejudiced" by
open-court testimony in defendant's case (Waller v Georgia, 467 US 39,
48). To comport with the Sixth Amendment guarantee of a public trial,
moreover, the trial court was obligated to ensure that closure was no
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. JUAN TOLENTINO, RESPONDENT-APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
On October 25, 1991, defendant was arrested for allegedly selling three grams of cocaine to
the prosecutor represented that the officer might still be working undercover in the area of
Defense counsel immediately objected, asserting defendant's right to a public trial and
Based solely on the prosecutor's representations and without conducting a hearing, the trial
Defendant having timely objected to the People's request to close the courtroom, the People,
To comport with the Sixth Amendment guarantee of a public trial, moreover, the trial court
Trial courts maintain "discretion to choose among alternative means for determining whether
Nevertheless, "no closing can be tolerated that is not preceded by an inquiry careful enough
The prosecutor's generalized representation that the undercover officer continued to work in
The court also failed to articulate any factual findings to support its closure order.
Finally, contrary to the People's contention, defendant's request to have his girlfriend
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