COURTROOM SHOULD NOT HAVE BEEN CLOSED TO FAMILY MEMBERS DURING THE UNDERCOVER OFFICER’S TESTIMONY, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, ordering an new trial, determined the defendant’s family members should not have been excluded from the courtroom duing the undercover officer’s testimony:

The People concede that the trial court erred in excluding defendant’s family members from some parts of the trial … . Here, the People failed to show specifically that defendant’s family posed a threat to the undercover officer’s safety. The court’s error requires reversal of the conviction … .

The People acknowledge that a harmless error/lack of prejudice analysis does not apply to courtroom closure errors. Nevertheless, relying on nonbinding Second Circuit case law, they argue that reversal is not warranted because the exclusion of defendant’s family was so trivial as not to implicate defendant’s right to a public trial (see e.g. Smith v Hollins, 448 F3d 533 [2d Cir 2006]). We need not decide whether a triviality exception exists under State law, because even applying that standard, the closure here cannot be characterized as trivial. Defendant’s family was kept out of the courtroom during the entirety of the direct examination, and part of the cross-examination, of an undercover officer who was one of the People’s key witnesses. That undercover was one of the officers involved in the narcotics operation that formed the basis of the charge against defendant. He set up the meeting to purchase the drugs, gave the buy money to defendant’s accomplice, and received crack cocaine in return. Thus, the exclusion of defendant’s family members “from the crux of the [People’s] case” was not trivial … . People v Ruffin, 2019 NY Slip Op 08771, First Dept 12-5-19