| People v Graves |
| 2015 NY Slip Op 08104 |
| Decided on November 12, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 12, 2015
Tom, J.P., Acosta, Moskowitz, Richter, JJ.
15746 1800N/11
v
Apina Graves, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Rachel T. Goldberg of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered February 13, 2013, convicting defendant, after a jury trial, of five counts of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to an aggregate term of four years, unanimously reversed, on the law, and the matter remanded for a new trial.
The People failed to show there was an overriding interest that was likely to be prejudiced by the undercover police officer's open-court testimony. Thus, the trial court erred in partially closing the courtroom, infringing upon defendant's right to a public trial (see People v Echevarria, 21 NY3d 1, 12-13 [2013], cert denied — US &mdash, 134 SCt 823 [2013]; People v Martinez, 82 NY2d 436, 443 [1993]). At the Hinton hearing, the officer acknowledged that although he was still engaged in undercover narcotics work, he had been assigned to the Bronx for over a year and was no longer working in Brooklyn, where the charged sales had occurred. The undercover officer noted there was a possibility he could return to Brooklyn, but conceded that it was based on mere "[t]alks" among his workplace "[p]eers." He testified that this was the only case he had in Manhattan, and that he never had seen any of his unapprehended subjects in the Manhattan courthouse except for defendant.
The sparse Hinton hearing testimony in this case does not suffice to establish the requisite nexus between the undercover officer's safety concerns and his testifying in open court in Manhattan (see Echevarria, 21 NY3d at 13). Here, the testimony only established that the undercover generally feared for his safety, and did not contain enough specificity to show an ongoing connection either to the area where defendant was arrested or the courthouse where the trial occurred (see Echevarria, 21 NY3d at 12; Martinez, 82 NY2d at 443-444).
The undercover failed to identify any specific threats from defendant or his family, or to establish that "associates of defendant or targets of investigation" were likely to be present in the courtroom (see People v Ramos, 90 NY2d 490, 498 [1997], cert denied, 522 U.S. 1002 [1997], quoting Martinez, 82 NY2d at 443). Finally, the People's brief mentions that this case was being prosecuted by Special Narcotics which has citywide jurisdiction, but the testimony at the Hinton [*2]hearing did not develop this issue or explain how it would affect the officer's safety concerns.[FN1]
In light of this disposition, we decline to reach defendant's other arguments.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 12, 2015
CLERK
Footnote 1:On the retrial, the court can conduct a new Hinton hearing based on the circumstances and the officer's work assignments at the time of the retrial.