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
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
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 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.
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 ...