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September 13, 1999


The opinion of the court was delivered by: Kaplan, District Judge.


Petitioner, Geraldo Soto, seeks a writ of habeas corpus, alleging that closure of the courtroom during certain pre-trial and trial proceedings in the state court violated his Sixth and Fourteenth Amendment right to a public trial.


The facts of the case are undisputed. Petitioner was arrested on August 27, 1993, near 10th Avenue and 48th Street during a "buy and bust" operation. That night, two undercover officers, Detectives Kissane and Durkin, were working near Hell's Kitchen Park. After watching petitioner several times reach into a paper bag, pass a plastic bag containing white rocks to an individual, and then accept something in return from the individual, the officers followed petitioner. As he left the area, he tossed a paper bag on the ground, which Kissane retrieved and found contained forty-five bags of crack cocaine. Durkin arrested petitioner, who was charged in New York Supreme Court with third degree criminal possession of a controlled substance.

Before trial, petitioner sought to suppress certain evidence against him. The People moved to close the suppression hearing to the public. On May 13, 1994, prior to the start of the suppression hearing, the suppression court held a Hinton*fn1 hearing to determine whether closure of the courtroom was permissible.

Detective Durkin testified at the Hinton hearing. He described his assignment to Manhattan South TNT, the Tactical Narcotics Team,*fn2 and his work in the area south of 59th Street from the east side to the west side.*fn3 At the time of the hearing, Durkin had been an undercover officer for three months*fn4 and a "permanent ghost" for the fifteen months prior.*fn5 As a ghost, Durkin observed narcotics buys; as an undercover officer he actually could make the buys.

Durkin described the reasons he wanted to testify in a closed courtroom. As an undercover he had made four buys which resulted in arrests in the area of Hell's Kitchen Park, the same area in which petitioner was arrested. Two of those cases were pending.*fn6 Durkin testified that he would continue to return to the same area to make undercover buys.*fn7 He had been threatened by people from whom he had tried to buy, who said that they would kill him if they found out he was a cop.*fn8 Durkin testified that his physical safety would be endangered if his identity as a police officer were revealed in an open proceeding.*fn9 He explained that his identity could be revealed at the courthouse because there are a lot of defendants walking to the courtrooms.*fn10 Durkin also explained the precautions he had taken in coming to court the day of the Hinton hearing to avoid such a revelation: riding in an undercover van, taking a back elevator, wearing plain clothes and not wearing a police shield.*fn11

Durkin testified further about precautions he had taken to conceal his identity in other court proceedings. He had testified four times in the month before petitioner's Hinton hearing, and the courtroom had been closed on each occasion.*fn12 Durkin on these occasions took precautions such as waiting in a witness room for several hours to avoid being seen,*fn13 using the judge's elevator,*fn14 and asking a plainclothes officer to check a public hallway to see whether anyone was there.*fn15

After Durkin had testified, the suppression court granted the application to close the courtroom during the suppression hearing. It found that the officer should not be "required to jeopardize his position" and referred to the officer's "concern[] for his safety."*fn16 It mentioned that "there are two present grand jury proceedings pending [at] which assumedly he'll be called upon to testify."*fn17 The court stated also that if a family member of the defendant wished to enter the courtroom, the court would entertain an application for him or her to do so.*fn18

After the suppression hearing, petitioner proceeded to trial, at which the prosecution again moved to close the courtroom during the testimony of the undercover officers. In considering closure during the trial testimony of Detective Durkin, the trial court reviewed the minutes of the Hinton hearing, although that hearing had been only five days earlier. The court asked for and received a representation that Durkin's situation had not changed.*fn19 It concluded that because "[Durkin's] usefulness would be impaired and he feared for his physical safety, together with ongoing investigations in the community" it would close the courtroom when Durkin testified at trial.*fn20

The trial court conducted a second Hinton hearing to consider whether to close the courtroom during the testimony of Detective Kissane. During that hearing, Kissane testified on many of the same topics that Durkin had. He too was an undercover officer assigned to Manhattan TNT, in his case for two years.*fn21 He had made over 180 buys as an undercover officer, between 35 and 40 of them in the area of Hell's Kitchen Park alone.*fn22 Cases remained pending concerning 15-20 buys he had made in the vicinity of Hell's Kitchen Park.*fn23 Kissane explained that he was engaged in an ongoing undercover operation in the Hell's Kitchen Park area and that it was "very likely" he would be back in that area trying to make buys.*fn24

Kissane testified that revelation of his identity as a police officer both would endanger his physical safety and compromise his usefulness as an undercover police officer.*fn25 He explained that his fears for his physical safety were based on actual threats made during his undercover buys: one person had pulled a knife on him; another had threatened to kill him if he was a cop.*fn26 He stated also that drug dealers and people addicted to drugs generally are violent people.*fn27

Kissane described the efforts he had made to conceal his identity in coming to court on the day of petitioner's trial and on other occasions. On the day of petitioner's trial, he tried to take the judge's elevator; when that failed, he took the stairs, which were empty of other people.*fn28 Kissane had testified as an undercover officer on approximately ten other occasions, and the courtroom had been closed on each of those occasions.*fn29

After the Hinton hearing as to Detective Kissane, the trial court closed the courtroom during his trial testimony as well.*fn30 The court explained that it based its decision on Kissane's "fear for his physical safety" and on the concern that "the usefulness of . . . him being used as an undercover ...

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