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COSENTINO v. KELLY

May 10, 1996

JOSEPH COSENTINO and ANTHONY MAGANA, Petitioners, against WALTER KELLY, SUPERINTENDENT OF ATTICA CORRECTIONAL FACILITY, and DANIEL SENKOWSKI, SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Respondents.


The opinion of the court was delivered by: CONNER

 Conner, Sr. D.J.:

 Joseph Cosentino and Anthony Magana have filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254 et seq. Petitioners request a writ of habeas corpus on the ground that their Sixth Amendment right to a public trial was violated. Having raised this issue in their state court proceedings, petitioners have exhausted available state remedies. For the reasons discussed below, the petition is denied.

 Petitioners Anthony Magana and Joseph Cosentino each were charged with the crimes of murder in the second degree, criminal use of a firearm in the first degree (two counts), criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the third degree (three counts). Both indictments charged that petitioners aided, abetted, and acted in concert with one another to accomplish the murder of John Petrucelli in White Plains, New York on September 13, 1989. *fn1"

 The first jury trial in this matter commenced on October 10, 1990 before the Honorable Donald Silverman, County Court, Westchester County. The jury completed deliberations on October 31, 1990, and informed the court that it had reached a verdict. Prior to bringing the jury into the courtroom, the court cautioned spectators to maintain control of themselves when the verdict was read. After the jury entered the courtroom, the court asked the jury what verdict it had reached with respect to the first count charging petitioner Magana with murder in the second degree. The jury foreperson responded, "Guilty, your Honor." At this point, a major disruption ensued involving family members and friends of petitioners, and certain spectators had to be removed from the courtroom. The jury foreperson then announced guilty verdicts for the remaining counts which were submitted for their consideration. The court then ordered a recess, and a court officer removed everyone from the courtroom.

 The jury later re-entered the courtroom, at which time the court expressed its apologies for the earlier disruption. When the jury was polled, two of the jurors changed their verdicts, and a third juror was unsure. Another juror addressed the court stating, "The jury has completely fallen apart at this particular time, judge, because of what happened in this courtroom just now and that -- none of us, I think, can right now give anything a fair answer of any kind. I'm sorry." Trial Transcript, at 1724-1725 (Oct. 31, 1990).

 After the jury was excused, both defense attorneys moved for a mistrial. The court stated, on the record, the essence of the disruption that had just occurred in the courtroom. Specifically, the court stated that "at the time the verdict was announced there was a great many members of the [petitioners'] family, friends here, I say 10 to 15 and not all of them but a good many of them just went absolutely off the wall yelling and screaming, several had to be physically restrained, taken out of the courtroom, we had quite a scene here. . . ." Trial Transcript, at 1725-1726 (Oct. 31, 1990). *fn2" The matter was then adjourned to the following morning.

 The following morning, both defense attorneys renewed their motions for a mistrial, which were denied. A curative instruction was given to the jury, but, after several more hours of deliberations and several readbacks, the jury sent a note to the court advising it that they were unable to reach a unanimous verdict. Both defense attorneys again moved for a mistrial, and their motions were granted by the court.

 After a second consolidated jury trial, petitioners each were convicted of the crimes of murder in the second degree and criminal possession of a weapon in the third degree (two counts). Pursuant to these convictions, on May 31, 1991, petitioners were sentenced to concurrent terms of imprisonment of twenty-five years to life for the crime of murder in the second degree and two and one-third to seven years for the crimes of criminal possession of a weapon in the third degree (two counts).

 Notices of appeal were filed and the appeal was perfected. *fn4" On appeal, petitioners argued that (1) the trial court's closure of the proceedings to their families deprived them of their constitutional right to a public trial; (2) the trial court improperly failed to make reasonable inquiry of each juror about petitioner Cosentino's involvement with organized crime; (3) the trial court should have ordered the Westchester County District Attorney to turn over to defense counsel all discovery materials prepared by federal authorities; and (4) petitioner Cosentino was denied a fair trial by the prejudicial statements in the prosecutor's summation. The judgments of the conviction were affirmed by decision and orders of the Appellate Division. People v. Magana, 198 A.D.2d 306, 603 N.Y.S.2d 772 (N.Y. App. Div. 1993); People v. Cosentino, 198 A.D.2d 294, 603 N.Y.S.2d 560 (N.Y. App. Div. 1993). Petitioners sought leave to appeal to the New York Court of Appeals. Petitioners' applications were denied. People v. Cosentino, 83 N.Y.2d 909, 614 N.Y.S.2d 391, 637 N.E.2d 282 (N.Y. 1994); People v. Magana, 82 N.Y.2d 927, 610 N.Y.S.2d 179, 632 N.E.2d 489 (N.Y. 1994). Petitioners then filed the instant application for habeas corpus, and this Court directed respondents to answer by November 27, 1995.

 DISCUSSION

 The Sixth Amendment, as applied to the states through the Fourteenth Amendment, guarantees that a criminal defendant shall enjoy the right to a "public trial." U.S. Const. amend. VI; In re Oliver, 333 U.S. 257, 266, 92 L. Ed. 682, 68 S. Ct. 499 (1948). This right assures the public that the defendant is dealt with fairly, protects against prosecutorial and judicial misconduct, encourages witnesses to come forward and discourages perjury. Waller v. Georgia, 467 U.S. 39, 46, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984). It may also cause all trial participants to perform their duties more conscientiously and gives the public an opportunity to observe the judicial system. Gannett Co. v. DePasquale, 443 U.S. 368, 383, 61 L. Ed. 2d 608, 99 S. Ct. 2898 (1979). The exclusion of courtroom observers, especially a defendant's family members and friends, even from part of a criminal trial, is not a step to be taken lightly. Guzman v. Scully, 80 F.3d 772, , 1996 WL 163034, at *5 (2d Cir. 1996). Moreover, it is well-settled that a defendant whose right to a public trial has been violated need not show that he suffered any prejudice, and the doctrine of harmless error does not ...


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