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March 11, 1997

GRANVILLE MASON, Plaintiff, against SUNNY SCHRIVER, Defendant.

The opinion of the court was delivered by: PECK


 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Loretta A. Preska, United States District Judge:

 Granville Mason's petition for a writ of habeas corpus raises an issue that has been addressed in three recent Second Circuit cases -- the propriety of closure of a state criminal trial during the testimony of an undercover police officer. See Pearson v. James, 105 F.3d 828 (2d Cir. 1997); Okonkwo v. Lacy, 104 F.3d 21 (2d Cir. 1997); Ayala v. Speckard, 102 F.3d 649 & 89 F.3d 91 (2d Cir. 1996). For the reasons discussed below, I recommend that Mason's habeas petition be granted based upon these recent Second Circuit decisions. Petitioner Mason's second habeas ground -- that the reasonable doubt jury instruction was improper -- lacks merit.


 On December 10, 1992, petitioner Granville Mason was convicted in Supreme Court, New York County, of criminal sale of a controlled substance and sentenced to five to ten years imprisonment as a second felony offender. (Petition, dated 8/15/96, PP 1-4.) During Mason's trial, the courtroom was closed for the testimony of two undercover officers. The First Department affirmed Mason's conviction, holding that the "undercover officers' Hinton-hearing testimony 'established the necessary spatial and temporal relationship among the courthouse, the location of defendant's arrest, and the anticipated geographic location of [their] future investigative work' to warrant closure of the courtroom." People v. Mason, 216 A.D.2d 149, 149, 628 N.Y.S.2d 648, 649 (1st Dep't 1995) (quoting People v. Brown, 214 A.D.2d 438, 438, 625 N.Y.S.2d 506, 507 (1st Dep't 1995)). The First Department further held that:

Both of the undercover officers were involved in ongoing long-term investigations in which some of the buy subjects had not yet been arrested, they continued to participate in "buy and bust operations" within the territory covered by Manhattan North Narcotics Division, which included the area north of 59th Street in Manhattan and encompassed the sales location, and both had pending cases from prior arrests.

 People v. Mason, 216 A.D.2d at 150, 628 N.Y.S.2d at 649. *fn1" The Court of Appeals denied leave to appeal on August 24, 1995. People v. Mason, 86 N.Y.2d 797, 632 N.Y.S.2d 511, 656 N.E.2d 610 (1995).

 On August 15, 1996, petitioner Mason filed his present habeas corpus petition pursuant to 28 U.S.C. ยง 2254, claiming that: (1) his Sixth Amendment right to a public trial was violated due to the courtroom closure during the testimony of two undercover officers; and (2) the trial court improperly charged the jury on reasonable doubt.

 The Closure Hearing

 On April 15, 1992, petitioner was arrested for selling three vials of crack cocaine to Detective Carey Billingly, an undercover detective with the police department's Manhattan North Narcotics Division. (E.g., Trial Tr. at 37-39.) The drug sale was observed by undercover police officer Linda Eaton-Lewis. (Id.)

 Before trial, the People moved to close the courtroom for the testimony of the two undercover officers. (9/15/92 Hinton Hearing [hereafter "H."] at 11-12.) Accordingly, a Hinton hearing was conducted to determine whether closure was warranted.

 Detective Billingly entered the courthouse for the Hinton hearing through the judges' entrance and waited to testify in a non-public area. (H. 17-18.) Detective Billingly testified at the Hinton hearing that during his three years as an undercover detective, he participated in 450-500 narcotics purchases, confined to the Manhattan North region, i.e., from 59th Street to the northern end of Manhattan. (H. 13, 16.) Detective Billingly testified that he remained involved in long term narcotics operations and that, because some subjects had not yet been arrested, he planned to continue purchasing narcotics in those cases. (H. 14.) Detective Billingly testified that there were "lost subjects" from his undercover buys -- that is, suspects who were not arrested. (H. 15.) According to Detective Billingly, testifying in an open courtroom would "hinder [his] job, and [his] life would be in danger." (H. 15.) Billingly had previously been threatened with "bodily harm and death," and in 1990, he had been forced to inhale drugs. (H. 15.) Detective Billingly's identity as an undercover officer is not public knowledge, and he "would not feel comfortable" testifying in an open courtroom. (H. 16.)

 Police Officer Linda Eaton-Lewis testified at the Hinton hearing that during her six months as an undercover officer, she participated in at least 200 narcotics purchases in New York County. (H. 19.) Like Detective Billingly, Officer Eaton-Lewis testified that she was involved in long-term narcotics operations, and planned to continue to purchase narcotics from those subjects who were not yet apprehended. (H. 19-20.) Officer Eaton-Lewis testified that her identity as an undercover officer was not public knowledge, she had been verbally threatened in the past, and she would be unable to testify in a non-inhibited manner if the courtroom were open during her testimony. (H. 20-21.) She felt that testifying in an open courtroom would jeopardize her safety "because the defendants can have people come into the courtroom and find out who" she is, and she "fear[s] for [her] safety." (H. 20-21.)

 At the conclusion of the very brief Hinton hearing -- the combined testimony of Detective Billingly and Officer Eaton-Lewis took only ten pages (H. 13-22) -- defense counsel objected to closure of the courtroom. (H. 24.) Defense counsel pointed out that all of the undercovers' buys occur above 59th Street (H. 24), and, of course, the courthouse was well below 59th Street.

 The trial judge granted the People's motion to close the courtroom during the undercovers' trial testimony, stating in full:

The application is granted as to each witness, and the courtroom will be closed during their testimony.
I find the People have met their burden of showing that closure is justified in this case and the cases cited by [the Assistant District ...

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