| People v Dawson |
| 2015 NY Slip Op 05959 [130 AD3d 750] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Patricio Dawson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and SethM. Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Tomei, J.), rendered April 16, 2012, convicting him of murder in the second degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppresshis statements to law enforcement officials.
Ordered that the judgment is affirmed.
In every criminal prosecution, the accused has a fundamental right to a public trial(see US Const 6th, 14th Amends; see also Civil Rights Law§ 12; Judiciary Law § 4; People v Martin, 16 NY3d 607, 611 [2011]; People vJelke, 308 NY 56, 61 [1954]). However, this right is not absolute and the trial courthas discretion to close the courtroom to the public when rare circumstances warrant it(see Waller v Georgia, 467 US 39, 48 [1984]; People v Martin, 16 NY3d 607, 611 [2011]; People vJones, 96 NY2d 213, 216 [2001]).
In order to comport with the requirements of the Sixth Amendment, a courtroomclosure must satisfy a four-prong standard set forth by the United States Supreme Courtin Waller v Georgia: (1) "the party seeking to close the hearing must advance anoverriding interest that is likely to be prejudiced," (2) "the closure must be no broaderthan necessary to protect that interest," (3) "the trial court must consider reasonablealternatives to closing the proceeding," and (4) "it must make findings adequate tosupport the closure" (Waller v Georgia, 467 US at 48, citing Press-EnterpriseCo. v Superior Court of Cal., Riverside Cty., 464 US 501, 511-512 [1984]; seePresley v Georgia, 558 US 209, 214 [2010]; People v Kin Kan, 78 NY2d 54,57-58 [1991]).
Contrary to the defendant's contentions, the trial court's partial closure of thecourtroom during the testimony of the eyewitness to the stabbing by excluding a certaingroup of men from the courtroom was not error. The witness, who had entered thecourthouse from a side entrance and had remained secluded in a room not accessible tothe public before entering the courtroom, wore a hat pulled down low over her face and ahoodie into the courtroom and immediately requested a recess upon entering thecourtroom and then refused to testify. Upon [*2]hearingthe witness express her fear of testifying because of certain men in the audience whomshe identified as affiliated with the defendant and belonging to a particular gang, thecourt conducted a closed courtroom hearing to ascertain the nature of the witness's fearand its effect upon her ability to testify in open court. The witness named one of the menand testified that she knew each of the men from her neighborhood, that they weremembers of a gang with which the defendant was affiliated, that the gang was a rivalgang to the one in which her boyfriend was involved, and there had been prior violentaltercations between the men in the courtroom and the witness's boyfriend. The witnesstestified that she believed that the men would attempt to kill her if she testified againstthe defendant. Further, she testified that one of the men made eye contact with her andshook his head at her in the courtroom, which she interpreted as a threat not to testify.The witness was very frightened by the idea that the men, who already knew her name,would now know her face. The evidence of the witness's extreme fear of testifying inopen court before the men, her refusal to do so, the trial court's observations that, basedupon the witness's demeanor, the fear was genuine, together with the fact that, althoughapproximately 15 or so people were present during the stabbing of the decedent, thewitness was the only person to come forward to the police, constitutes sufficient proof toestablish an overriding interest that was likely to be prejudiced unless the courtroom wasclosed to the individuals of whom the witness was fearful (see Waller v Georgia,467 US at 48; People v Frost, 100 NY2d 129, 137 [2003]; People v MingLi, 91 NY2d 913, 917 [1998]). In addition, the scope of the closure was no broaderthan was necessary. The exclusions were limited to the men identified by the witness ascausing her fear, and their exclusion was limited to the duration of her testimony (seePeople v Ming Li, 91 NY2d at 917). Furthermore, the trial court explored thepossibility of limiting the courtroom exclusion to only the individual who had shaken hishead at the witness, but the witness indicated that her fear would not be abated if theother men she recognized remained in the courtroom. Accordingly, this record shows thatthe trial court, in directing the exclusion at issue, determined that no lesser alternativewould protect the interest at stake (see People v Echevarria, 21 NY3d 1, 15 [2013]; Peoplev Ramos, 90 NY2d 490, 504 [1997]).
The Supreme Court properly admitted the statements of the decedent that were madewithin minutes of the stabbing under the excited utterance exception to the hearsay rule(see People v Cantave, 21NY3d 374, 381-382 [2013]; People v Johnson, 1 NY3d 302 [2003]; People vVasquez, 88 NY2d 561, 579 [1996]; People v Nieves, 67 NY2d 125, 135[1986]; People v Edwards, 47 NY2d 493 [1979]).
The hearing court should have granted suppression of the defendant's statement thatwas elicited by the police after he had invoked his right to counsel (see Miranda vArizona, 384 US 436 [1966]), as the record indicates that the inquiry wasinvestigative in nature and the pedigree exception to the Miranda rule isinapplicable under these facts (see People v Antonio, 86 AD2d 614 [1982];People v Rodriguez, 111 Misc 2d 747, 750-751 [Sup Ct, Kings County 1981]).However, the error was harmless (see People v Borukhova, 89 AD3d 194, 216 [2011]). Inthis case, the evidence of the defendant's guilt was overwhelming: the eyewitness to thestabbing identified the defendant, whom she knew, at trial as the perpetrator, thedecedent identified his attacker by the name "Picasso" in his excited utterance, and twowitnesses who knew the defendant identified him at trial as the person known by thatname. There is no reasonable possibility that the error contributed to the defendant'sconviction, and the error did not deprive the defendant of his constitutional right to a fairtrial (see People v Paulman,5 NY3d 122, 134 [2005]; People v Borukhova, 89 AD3d at 216).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Leventhal, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur.