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PETERSON v. WILLIAMS

October 18, 1995

KAREEM PETERSON, Petitioner, against MELVIN WILLIAMS, SUPERINTENDENT OF WYOMING CORRECTIONAL FACILITY, Respondent.


The opinion of the court was delivered by: GLEESON

 JOHN GLEESON, United States District Judge:

 Petitioner Kareem Peterson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in New York Supreme Court, Kings County, of third-degree criminal sale of a controlled substance under N.Y. Penal Law § 220.39(1) (McKinney 1989). Petitioner claims that the trial proceedings giving rise to his conviction were deficient because they deprived him of his constitutional right to a public trial. Respondent does not dispute that petitioner has exhausted his state court remedies, and that this Court may reach the merits of the claim. *fn1" For the reasons stated below, the petition is denied.

 BACKGROUND

 After a one-day jury trial, petitioner was found guilty of selling a controlled substance. He was sentenced on October 3, 1990, to 6 to 12 years in prison.

 At the trial, Police Officer John Faust identified petitioner as the person who had sold him two vials of crack on the corner of Classon and St. Marks in Brooklyn, in the early evening of August 3, 1989. The officer testified that just after 5:00 p.m. that day, while acting in an undercover capacity, he approached petitioner and asked if he had any "nicks." *fn2" Petitioner responded "yeah, how many," and when Faust indicated two, handed over two vials of crack cocaine. For these, Faust paid petitioner $ 10 in pre-recorded "buy money." He then observed petitioner walk away and stop at the corner of Classon and Bergen in front of a bodega. Finally, Faust testified that at the time of the incident, petitioner had been wearing gray pants and a green and white striped "Le Tigre-type shirt" bearing a small tiger insignia.

 Police Officer Roberto Nieves, who had been serving as Faust's "ghost" backup on August 3, 1989, *fn3" also testified, but did not identify petitioner in court. He stated, however, that at the relevant time and place he observed Officer Faust conversing with a man who was wearing gray pants and a green "short sleeved polo-type shirt with white stripes."

 Petitioner was arrested at the corner of Classon and Bergen at 5:10 p.m. The evidence at trial revealed that he had neither drugs nor buy money in his possession at the time of the arrest. A cigarette "twisted on the end" was recovered from behind his right ear, but testing revealed that it did not contain a controlled substance.

 Before Officer Nieves took the stand at trial, the People moved to seal the courtroom for the duration of his testimony. After a closure hearing outside the presence of the jury, the court granted the application over petitioner's objection, reasoning that Nieves' continuing undercover work in the neighborhood made closure necessary. *fn4"

 Pursuant to the closure order, spectators observing the trial were ushered out of the courtroom, and it was sealed. Nieves completed his testimony and was excused. The trial record indicates that the judge did not then order the unsealing of the courtroom, but instead allowed the proceedings to continue. The parties announced to the jury the following two stipulations: (1) that the two vials Officer Faust had obtained at the corner of Classon and St. Marks on August 3, 1989, contained cocaine; and (2) that the cigarette recovered from behind petitioner's ear did not contain any controlled substance. The People rested and defense counsel's motion for an order of dismissal was denied.

 Petitioner then took the stand and testified for fifteen to twenty minutes. *fn5" He claimed that he had not possessed or sold drugs on August 3, 1989. Rather, he said he had gone to the grocery store on the corner of Bergen and Classon at the time of the alleged transaction in order to buy cigarettes. He stated further that at the time of the incident he had been wearing a turquoise blue Izod shirt with pink and white stripes, and that the emblem thereon was an alligator, not a tiger.

 Claiming that the petitioner's right to a public trial had been violated, the defense moved for a mistrial. The court reserved decision on the motion until after the guilty verdict was rendered. It then denied the application on the ground that the failure to reopen the courtroom had been unintentional, i.e., it had not resulted from an improper, intentional extension of the original closure order. The court further opined that the defendant had not been prejudiced by the error.

 On appeal, petitioner argued that the continued closure of the courtroom after Officer Nieves had completed his testimony violated petitioner's Sixth Amendment right to a public trial as applied to the states through the Fourteenth Amendment. The Appellate Division affirmed the judgment on the ground that the continued closure of the proceedings throughout petitioner's testimony had been inadvertent and there was no evidence that any observer wishing to enter the courtroom had been excluded. People v. Peterson, 186 A.D.2d 231, 232, 587 N.Y.S.2d 770, 772 (2d Dep't 1992). For these reasons, the court concluded, a new trial would not advance the purposes served by the Sixth Amendment. Id. The Court of Appeals affirmed, reasoning that the brief, inadvertent and unnoticed continuation of a proper courtroom sealing was not an affirmative act of ...


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