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April 17, 2001


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.


Petitioner Hoi Man Yung ("Yung"), a prisoner in state custody, has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 alleging that the trial court's decision to close the courtroom to his family members during the testimony of an undercover officer violated his Sixth Amendment right to a public trial. For the reasons set forth below, the petition will be granted and the case remanded with instructions to release Yung unless a new trial is held within a reasonable time.


In 1993, Yung was indicted on multiple counts each of first-degree criminal sale of a controlled substance, criminal possession of a controlled substance in the third degree, criminal sale of a firearm in the third degree, and criminal possession of a firearm in the third degree.

The prosecution's case involved the testimony of an undercover police officer who, at the time of trial, was continuing to work in an undercover capacity in the same Lower East Side neighborhood where Yung and his confederates had been involved in the illicit drug and weapons trade. Seeking to ensure the officer's safety and that his identity would not be divulged, the prosecution sought to have the officer testify by badge number rather than by name, and to close the courtroom to Yung's family during his testimony.

New York Supreme Court Justice Ronald Zweibel held a hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 75-76, 334 N.Y.S.2d 885, 889-90 (1972), to determine whether such protective measures were warranted, and if so, their appropriate scope. On November 18, 1994, the courtroom was sealed and the officer testified in the presence of only the judge and counsel. The officer testified that he continued to work on two pending investigations in the neighborhood where Yung had operated, had been threatened by unnamed "people connected with" Yung, most recently approximately nine months before the hearing, and feared for his safety if the courtroom were not closed during his trial testimony. (Hearing Tr. 691, 692, 699.) The only person he cited as having threatened him was in the midst of an ongoing trial at the time the officer testified, and was not a member of Yung's family. (Hearing Tr. 711.) No questions were asked regarding whether the individual was in custody or whether that trial was being held in the same courthouse as Yung's trial, or whether that individual was in custody.

The officer, who was called and identified by his shield number (#1022) rather than his name, stated that in his nine years as an undercover officer, he had testified approximately forty times, all of which had been in closed courtrooms. He testified that he used his true first name in the field and would no longer be able to operate as an undercover officer if his identity were revealed in open court. (H 692, 706.) No testimony was elicited regarding what measures, if any, the officer took to avoid being identified while inside the courthouse.

On cross examination, defense counsel attempted to elicit the names of the associates of Yung who had threatened the officer, but Justice Zweibel cut off that line of questioning, stating that he would allow only those questions that "do not jeopardize the safety and security of the officer. If it means perhaps compromising the defendant's rights to the extent of not revealing the officer's identity to others that he's associated with then I will not permit the hearing to go that far." (Hearing Tr. 692, 693-95.) When defense counsel challenged the existence of any link between disclosing the identity of persons who had threatened the officer and a threat to his safety, Justice Zweibel replied, "I understand. But you want the names of individuals who perhaps can be told at a later point who the undercover allegedly claims threatened him, so that they will know who this undercover is while he is out in the field." (Hearing Tr. 696.)

The defense noted that whether the undercover officer could be identified should not be a consideration, because he would necessarily disclose his identity when he testified in Yung's presence at trial. Justice Zweibel discounted this argument and refused to allow the defense to pursue any questions that could lead to the officer's identity being revealed. (Hearing Tr. 697.)

When asked whether he had any "reason to fear" Yung's family members,*fn1 the officer responded, "I can't really answer that," and referred only to the unnamed individual from whom he had received threats, who was not related to Yung, but was merely "affiliated" with him. (Hearing Tr. 710, 711.) However, the officer did admit that he had never been threatened by any member of Yung's family. (Hearing Tr. 708.) No questions were asked to ascertain whether Yung's family lived in the same Lower East Side neighborhood where the officer conducted undercover operations.

Justice Zweibel found that the prosecution had shown sufficient danger to the officer's undercover identity and safety to justify closing the courtroom to Yung's family members at trial, not because they posed any direct threat to the officer, but because allowing them to be present would "mak[e] it easier" for others Yung was associated with outside the family to identify him. As a result, in addition to Yung's brother, David, Yung's mother, Ha Chung Yuk, his sister-in-law, Theresa Soto, and his daughter's mother, Beverly Soto, were all excluded from the trial during the undercover's testimony. Although colleagues of Yung's counsel were specifically authorized to attend, the courtroom was otherwise closed to the general public during the officer's trial testimony. (Hearing Tr. 33; Tr. 720.)

At the trial, the People presented evidence from the undercover officer who purchased narcotics and weapons from Yung, as well as testimony from a second police officer, who was the undercover's backup and received the recovered firearms. In addition, a detective and firearms examiner, three New York City Police Department chemists, and two additional civilian chemists testified as to the firearms and composition of the heroin and cocaine in Yung's possession. Yung was the only witness who testified for the defense.

The jury convicted Yung of two counts of criminal sale of a controlled substance in the first degree; nine counts of criminal sale of a firearm in the third degree; five counts of criminal possession of a weapon in the third degree; and three counts of criminal sale of a controlled substance in the third degree. Yung was sentenced to two consecutive terms of twenty years to life, to be served consecutively to two groups of concurrent sentences, each containing concurrent terms of two to six and one to three years, and also to be served consecutively to three additional consecutive sentences of two to six years each. In short, Yung received a fifty years to life prison term.

Procedural History

Assisted by attorneys from the Legal Aid Society, Yung appealed the conviction on the grounds that closing the courtroom to his family during the undercover officer's testimony violated his public trial rights under the Sixth and Fourteenth Amendments to the United States Constitution and New York law, and that Justice Zweibel had abused his sentencing discretion. The Appellate Division held that the courtroom was properly closed after the People established "particularized reasons for concern that defendant's relatives posed a threat to his safety by revealing his identity" at the Hinton hearing, and affirmed the conviction. People v. Hoi Man Yung, 240 A.D.2d 252, 252, 659 N.Y.S.2d 733, 733 (N.Y.App.Div. 1997).

The New York Court of Appeals denied Yung's application for leave to appeal on September 24, 1997. People v. Hoi Man Yung, 90 N.Y.2d 940, 664 N.Y.S.2d 758 (1997) (Titone, J.). Yung petitioned for reconsideration of the denial of leave in light of the intervening reversal of People v. Nieves, 232 A.D.2d 305, 648 N.Y.S.2d 583 (N.Y.App.Div. 1996), by the Court of Appeals, which vacated a defendant's conviction and ordered a new trial because his family had been excluded from part of the trial. People v. Nieves, 90 N.Y.2d 426, 683 N.E.2d 764, 660 N.Y.S.2d 858 (N.Y. 1997). The ...

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