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February 10, 2000


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


Vernon Bowden ("petitioner" or "Bowden") brings the instant petition pursuant to 28 U.S.C. § 2254 against the Superintendent of Woodburne Correctional Facility and the Attorney General of the State of New York. Petitioner challenges his state court conviction on the ground that a closure of the courtroom to the general public during the testimony of a government undercover officer witness violated his right to a public trial under Sixth and Fourteenth Amendments to the United States Constitution. For the reasons set forth below, the instant petition is denied.


Petitioner's conviction arose out of a "buy and bust"*fn1 transaction in which he sold three vials of crack cocaine to Detective Billingy ("Billingy"), an undercover police officer. According to Billingy's testimony, which he gave in open court, Billingy observed petitioner on July 2, 1993 outside of a building near 126th Street in Manhattan. Trial Transcript ("Tr.") at 288. As Billingy approached the building, petitioner "hissed" at him and gestured for him to wait. Id. Billingy testified further that petitioner then led him into the building and asked what he wanted. Id. at 288-89, 339. Billingy told petitioner that he wanted "three" and gave petitioner twelve dollars in pre-recorded buy money. Id. at 289, 298, 339. Billingy then testified that petitioner walked up several steps, lifted a doormat, and removed three vials of crack cocaine from a bag under the mat. He then descended the stairs and gave the vials to Billingy. Id. at 289, 297.

Detective Weathers ("Weathers"), another undercover officer, subsequently testified in closed court that he followed Billingy from a half-block behind during the operation, acting as his "ghost."*fn2 Id. at 367-69. He testified further that from a distance of approximately 100 to 150 feet, he observed petitioner leave and enter the building with Billingy, and that thereafter, he transmitted a detailed description of petitioner to the arrest team. Id. at 369-371. He subsequently joined Billingy in an undercover car, where, according to both Billingy and Weathers' testimony, they radioed in a description of petitioner and did a drive-by identification while petitioner was detained. Id. at 292. A member of the arrest team then testified that he entered the building and recovered the buy money and a vial of crack cocaine from under the mat on the stairs. Id. at 388-89. The only other individual to testify was a police chemist who stated that the three vials recovered from petitioner did in fact contain crack cocaine. Id. at 427.

On January 13, 1994, the trial court held a Hinton*fn3 hearing on the government's motion to close the courtroom during Detective Weathers' testimony. During the hearing, Weathers testified that he was assigned to the North Manhattan Narcotics District, where he was participating in several ongoing narcotics investigations. Id. at 215-216. He also indicated that he had been threatened by drug dealers who suspected that he was a police officer, stating: "I've already been threatened by alleged drug dealers for being a cop. I'm supposed to be killed or whatnot [sic], mutilated, strangulated [sic]." Id. at 218, 216-20. Moreover, Weathers testified that he had approximately twenty-five to thirty "lost subjects," or suspects from whom he had bought drugs but whom had not been arrested. Id. at 217. Defense counsel briefly cross-examined Weathers, and after summation by the prosecution, objected to the closure and rested on the record. Id. at 222.

The trial judge granted the prosecution's motion to close the courtroom, stating:

I believe the record now does substantiate closure of the courtroom, and I am not going to summarize it. I think it speaks for itself, not the least factor of which is the way information circulates throughout this system[.][It] is perfectly conceivable to me that word will get out if I did not close the courtroom that an undercover officer would be testifying and that he will be identified, and it isn't necessary for people to be sitting in the courtroom.

Id. at 222-23.

At the conclusion of petitioner's trial, the jury found petitioner guilty of one count of criminal sale of a controlled substance in the third degree and not guilty of two counts of criminal possession of a controlled substance. Id. at 533-534.

Petitioner appealed his conviction to the New York Supreme Court, Appellate Division, First Department, arguing that closure of the courtroom during Detective Weather's testimony violated his Sixth Amendment right to a public trial, and that his sentence was excessive. On December 17, 1996, the Appellate Division affirmed petitioner's conviction. People v. Bowden, 234 A.D.2d 127, 651 N.Y.S.2d 453 (1st Dep't 1996). The New York Court of Appeals denied petitioner leave to appeal on July 1, 1997. People v. Bowden, 90 N.Y.2d 891, 685 N.E.2d 215, 662 N.Y.S.2d 434 (1997). Bowden filed the present petition on June 16, 1998, claiming that closure of the courtroom violated his Sixth Amendment right to a fair trial.

On May 28, 1999, Magistrate Judge Henry Pitman issued a Report and Recommendation finding that under the relevant legal standard: (1) the limited closure of the courtroom was justified on the basis of Detective Weathers' safety; (2) the closure of the Court was no broader than necessary; (3) the trial court had no duty to consider alternatives to partial closure; and (4) the trial judge's failure to make findings of fact was in good faith. See Report and Recommendation dated May 28, 1999 ("Mag.Rep.") at 22-23. On the basis of these findings, Magistrate Judge Pitman recommended that petitioner's application for a writ of habeas corpus be denied and that petitioner also be denied a certificate of appealability. Id. at 23-24.


The Court agrees with Judge Pitman's conclusion that Bowden's petition for a writ of habeas corpus must be denied. However, since Judge Pitman's ruling relied heavily on the now vacated decision in Brown v. Andrews, 1998 WL 293994 (S.D.N.Y. June 5, 1998), vacated by, Brown v. Andrews, 180 F.3d 403 (2d Cir. 1999), ...

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