I respectfully dissent in Johnson because I believe that the majority’s holding eviscerates the substance of Presley v Georgia (558 US 209 [2010]) in New York State criminal trials, and allows such issues to escape meaningful appellate review.
The right of a criminal defendant to a public trial is fundamental (People v Martin, 16 NY3d 607, 611 [2011]; US Const 6th, 14th Amends; see also Civil Rights Law § 12; Judiciary Law § 4). And, although it “may give way in certain cases to other rights or interests,” “[s]uch circumstances will be rare . . . and the balance of interests must be struck with special care” (Presley, 558 US at 213 [internal quotation marks omitted]). Like the Georgia trial court in Presley, the court in Johnson did not consider any alternatives to closing the courtroom. Possible reasonable alternatives to closure included the posting of a court officer outside the courtroom door to screen entrants, or having the witness testify behind a screen or in disguise (see e.g. People v Jones, 96 NY2d 213, 215 [2001]; People v Martinez, 82 NY2d 436, 444 [1993]; People v Muniz, 273 AD2d 138, 139 [1st Dept 2000]; People v Oliphant, 258 AD2d 536, 536-537 [2d Dept 1999]; Carson v Fischer, 421 F3d 83, 90 [2d Cir 2005]; United States v Lucas, 932 F2d 1210, 1216-1217 [8th Cir 1991]). If it was not previously clear that the court is required to consider alternatives even if they are not proposed by the parties (see People v Ramos, 90 NY2d 490, 504-505 [1997]), it is now (Presley, 558 US at 214), and this Court has recognized that “[e]ven [if] . . . the trial court ha[s] an overriding interest in closing [a part of the trial], it [i]s still incumbent upon it to consider all reasonable alternatives to closure” (Martin, 16 NY3d at 612 [internal quotation marks omitted], quoting Presley, 558 US at 216).
The Supreme Court in Presley reiterated that, “before excluding the public from any stage of a criminal trial,” trial courts are required to apply the following four standards: (1) “[t]he party seeking to close the [proceeding] must advance an *23overriding interest that is likely to be prejudiced”; (2) “the closure must be no broader than necessary to protect that interest”; (3) “the trial court must consider reasonable alternatives to closing the proceeding”; and (4) the trial court “must make findings adequate to support the closure” (Presley, 558 US at 213-214 [internal quotation marks omitted], quoting Waller v Georgia, 467 US 39, 48 [1984]). If a trial court fails to adhere to this procedure, any closure is unjustified and will require reversal (Presley, 558 US at 215).
With respect to the requirement that reasonable alternatives to closure be considered, the Supreme Court could not have been clearer: “[e]ven with findings adequate to support closure, the trial court’s orders denying access to voir dire testimony failed to consider whether alternatives were available .... Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire” (id. at 214 [internal quotation marks omitted and emphasis added]). Then the Court took pains to underscore that “[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at [petitioner’s] trial” (id. at 215 [emphasis added]). There is nothing in this language that would suggest that the Supreme Court had in mind that an “implied” consideration of alternatives would be constitutionally acceptable. Were that the case, the Court would not have attached dispositive significance to the absence of the required consideration in the trial court’s orders and the trial record. It is to state the obvious that Presley does not contemplate an unreviewable, purely contemplative exercise in satisfaction of a trial court’s obligation to consider reasonable alternatives to court closure. The notion advanced in Ramos, to which the majority continues to cling notwithstanding its rejection in Presley, that the mandated sua sponte consideration of alternatives to closure may be implied from the order granting closure, cannot be justified. The constitutional presumption is that criminal trials are to be open to the public. If that presumption is to be overcome, it cannot be by implication, otherwise a reviewing court cannot ascertain that the closure is essential.
It is of paramount importance to place particularized reasoning on the record when a defendant’s constitutional rights may be abrogated by overriding interests (see Martin, 16 NY3d at 613 [“(a) denial of the public trial right requires an affirmative act by the trial court”] [internal quotation marks omitted]). In *24Johnson, although the prosecutor argued to the court that there were “no lesser option[s]” than closure to protect the officers’ safety, there was no way to know whether the trial court abused its discretion without the court actually considering and rejecting those options on the record. And in Echevarria—in which I concur in the reversal based on the agency charge error, but disagree with the majority regarding the court closure issue— there was also no mention of alternatives. The undercover officers might have been able to safely testify with a disguise or behind a partition, or an officer stationed outside the courtroom might have screened would-be spectators and excluded only those individuals who live in the vicinity of the arrest.
As we stated in an analogous context in People v Clyde (18 NY3d 145, 153 [2011]), in which a defendant was shackled without a trial judge’s explicit reasoning on the record, “[w]e cannot tell from the record whether County Court shackled Clyde as a matter of routine because he had already been convicted of a violent crime, or whether the court engaged in case-specific reasoning that led to the conclusion that shackles were necessary” (see also People v Buchanan, 13 NY3d 1 [2009] [a stun belt may not be used to restrain a defendant in a criminal case without a finding of specific facts on the record justifying the use of such a restraint]). Similarly here, there is no way to know whether any alternatives were actually considered, or whether the courtroom was closed as a matter of course, once safety concerns were implicated by the officers’ testimony.
Because the command of Presley is binding, trial courts must actually and explicitly meet their constitutional obligation by sua sponte “tak[ing] every reasonable measure” to keep the court open to the public by “considering] all reasonable alternatives to closure” (558 US at 215, 216).
I note in this connection that the majority ignores, without explanation, Waller’s requirement that a trial court “make findings adequate to support the closure” (467 US at 48). It comports with the most basic logical understanding of that language that a trial court explain not only the overriding interest that might justify closure but, in addition, what reasonable alternatives to closure were considered and rejected (see Guzman v Scully, 80 F3d 772, 776 [2d Cir 1996] [trial judge’s “conclusory justification” for closing courtroom during witness testimony failed to satisfy obligation to make findings supporting closure]; see also Downs v Lape, 657 F3d 97, 115-116 [2d Cir 2011] [a record with no findings fails Waller]).
*25The majority suggests that limiting closure duration and permitting family attendance work in tandem to satisfy the second and third prongs of Waller. But those two limitations only satisfy the second prong concerning breadth (People v Kin Kan, 78 NY2d 54, 58-59 [1991] [exclusion of defendant’s family overbroad under Waller]; People v Nazario, 4 NY3d 70, 72 [2005] [same]; People v Nieves, 90 NY2d 426, 430 [1997] [same]; People v Frost, 100 NY2d 129, 137 [2003] [limiting length of closure to testimony of undercover officers goes to breadth of closure]; People v Jones, 96 NY2d 213, 220 [2001] [same]; see also Carson v Fischer, 421 F3d 83, 89-90 [2d Cir 2005] [“(w)hether a closure is narrow or broad depends on several factors, including its duration, whether the public can learn what transpired while the trial was closed (e.g. through transcripts), whether the evidence was essential, and whether selected members of the public were barred from the courtroom, or whether all spectators were excluded”]). Presley holds, in no uncertain terms, that the question of a closure’s necessity, and the entailed consideration of whether there are alternatives thereto should not be confused with that of whether a closure whose necessity has been shown has been narrowed to the extent reasonably possible (558 US at 214-215).
I join the Court’s affirmance in People v Moss because there the trial court considered what it thought was the only reasonable alternative to closure, placing an officer outside the courtroom, and considered and rejected this option on the record. Although that practice may entail its own problems, at least it may have been a reasonable alternative to closure for the testimony of undercover officers, and at least it was considered and rejected on the record.* The record in Moss demonstrates that this consideration was not a litany, but a particularized deliberation of a case-specific alternative.
It is simply not enough for the Court to limit closure to the duration of an undercover’s testimony and allow the defendant’s family’s presence in the courtroom. Without any further findings explained on the record, the closure itself remains without the constitutionally requisite justification. Such a closure satisfies, at most, prongs one and two of Waller, yet the *26majority gives trial courts carte blanche to do just that. Courtroom closures for testimony of undercover officers are frequent in our state, and thus faced with a threat of it becoming routine, if not the rule, it is all the more important to ensure that all steps articulated by Presley are undertaken with the requisite particularity and gravity appropriate to safeguard defendants’ rights.
In People v Echevarria: Order reversed and a new trial ordered.
Opinion by Judge Graffeo. Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur, Chief Judge Lippman in a separate opinion, in which Judge Rivera concurs.
In People v Moss: Order affirmed.
Opinion by Judge Graffeo. Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur, Chief Judge Lippman in a separate opinion, in which Judge Rivera concurs.
In People v Johnson: Order affirmed.
Opinion by Judge Graffeo. Judges Read, Smith and Pigott concur. Chief Judge Lippman dissents in an opinion, in which Judge Rivera concurs.
I limit this portion of my dissent to the threshold requirement of a trial court’s sua sponte explicit consideration of alternatives on the record. Once the mandate of Presley is acknowledged, the court would need to determine what alternatives are reasonable and viable under particular circumstances. However, under today’s decision, the majority requires none of the above.