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June 19, 2001


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


Petitioner Thurman Durant ("Durant") filed this petition pursuant to 28 U.S.C. § 2254 challenging his January 1996 judgment of conviction in New York Supreme Court, Queens County, for criminal possession of a controlled substance in the third degree and in the seventh degree. The petition asserts that the trial court (1) permitted the prosecutor to violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and (2) violated Durant's Sixth Amendment right to a public trial. On May 19, 2000, the Court referred the petition to Magistrate Judge Roanne L. Mann ("Judge Mann"). Judge Mann submitted a Report and Recommendation ("R & R") on April 3, 2001 recommending that the petition be granted on the first ground only. The Court is in receipt of Durant's objections to Judge Mann's recommendation concerning the second ground for the petition. Respondent has not filed any objection to the R & R.*fn1

"If either party objects to the magistrate judge's recommendations, a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." United States v. Tortora, 30 F.3d 334, 337 (2d Cir. 1994) (internal quotations omitted). "[A] party generally waives judicial review of an issue when he or she fails to make timely objection to a magistrate judge's report, as long as all parties receive clear notice of the consequences of their failure to object." DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)). "This rule, however, is a nonjurisdictional waiver provision, and its violation may be excused in the interests of justice." Id. (citing Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)). Further, the Court will excuse the failure to object and conduct a de novo review if it appears after reading the R & R that the magistrate judge may have committed plain error in ruling against the defaulting party. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).

The Court has reviewed the R & R de novo in respect to Durant's objections, and concurs with Judge Mann. It is sufficiently apparent in the record that the decision of the trial judge to close the courtroom during the testimony of the two undercover police officers took into consideration the alternative suggested by trial counsel for Durant. See Bowden v. Keane, 237 F.3d 125, 132 (2d Cir. 2001). Competent evidence existed to justify this limited closure. See id. (quoting United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994)) ("specific findings by the [trial] court are not necessary if we can glean sufficient support for a partial temporary closing from the record"). Because respondent has not filed objections, the Court has not conducted a de novo review in respect to the Batson issue; however, the Court has read the R & R and finding no plain error adopts the recommendation to grant the writ.



In this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, petitioner Thurman Durant ("petitioner" or "Durant") seeks relief from a state drug conviction. Durant claims that (1) the prosecution excluded a prospective juror on the basis of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment; and (2) the trial court closed the courtroom, in violation of the Public Trial Clause of the Sixth Amendment.

The Honorable Frederic Block referred the petition to the undersigned for a report and recommendation. For the reasons that follow, this Court recommends that the petition be granted on the first ground only.


The Evidence at Trial and Durant's Conviction

Late in the evening of January 28, 1995, Durant was arrested in a Queens County "buy-and-bust" operation. An undercover police officer ("UC 26210") approached a man, later identified as Jerome Robinson, and told Robinson that he was looking for three five-dollar packages of crack cocaine. Trial Transcript ("Tr.") at 366-68. Robinson told him to wait at that location and he would get him something. Id. at 369. Shortly thereafter, a "back-up" or "ghost" undercover officer ("UC 12328") observed Robinson entering a Chinese restaurant and handing money to Durant in exchange for a clear plastic bag containing something orange. Id. at 430-35. When Robinson returned to UC 26210, he sold the officer three vials of crack with orange caps, in exchange for $15 in pre-recorded bills. Id. at 373-74. Detective Kathleen Kragel then arrested Robinson and recovered the pre-recorded buy money from his person. Id. at 502-05. Detective Joseph Savine arrested Durant and found in his possession 57 filled vials with orange caps, as well as a baggie containing 59 filled vials with green caps. Id. at 473-77. Subsequent laboratory analyses of the vials revealed that the three vials Robinson sold UC 26210 contained cocaine, as did the 116 vials seized from Durant. Id. at 564-70, 589-92.

A Queens County grand jury charged Durant with criminal sale of a controlled substance in the third degree (N.Y. Penal Law § 220.39) and criminal possession of a controlled substance in the third and seventh degrees (N.Y. Penal Law §§ 220.16[1] and 220.03). Following a jury trial in late 1995, Durant was found guilty of possessing the 116 vials of crack cocaine, but not guilty of the sale of the three vials to the undercover officer. Tr. at 704-05. On January 5, 1996, Durant was sentenced to a prison term of nine to eighteen years.

Courtroom Closure

After opening statements to the jury, the trial court held an evidentiary hearing on the prosecution's motion to close the courtroom during the testimony of the two undercover police officers, UC 26210 and his back-up, UC 12328. Both men testified that they were still actively working as undercover officers in the vicinity of Durant's arrest. Tr. at 292, 305, 324-25. In addition, they both had several cases pending in the Kew Gardens courthouse in which Durant's case was pending. Id. at 293, 320-21. In fact, UC 26210 stated that he had seen some of the subjects of those cases around the courthouse as recently as two weeks earlier. Id. at 294, 303. Both officers testified that in the past they had been threatened by people who believed that they were police officers. Id. at 309, 323, 328. For the above reasons, the officers feared for their safety if the courtroom remained open, because their involvement in law enforcement would be revealed. Id. at 294-95, 323-24.

Following the above testimony, and in the course of argument by counsel, Durant's attorney asked that he be heard on alternatives to closure of the courtroom. Id. at 329. Defense counsel proposed that a court officer be stationed outside the courtroom to prevent entry by anyone with a pending drug case in the upstairs trial part that heard solely drug cases. Id. at 330. In response, the prosecutor argued that defense counsel's alternative was "entirely unrealistic" because the court officer would have to question those attempting to enter the courtroom and rely on the truthfulness of their answers. Id. at 332. Having considered the testimony and the arguments of counsel, the judge thereupon granted the motion to close the courtroom during the testimony of the two undercover officers, concluding that the prosecution had established compelling reasons to justify such partial closure. Id. at 334.*fn1 The judge did not expressly address defense counsel's proposed alternative or the prosecution's challenge to the adequacy of that proposal. See id.

Jury Selection

During jury selection, at the end of the second round of voir dire, the prosecutor exercised three peremptory challenges against three jurors, two of whom were black. Id. at 195, 197. In response, defense counsel made a motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), noting that the prosecutor had challenged two of the three blacks on the panel, Prospective Juror Number 3, Rudy Porter, and Prospective Juror Number 4, Shaliya Brooks.*fn2 Tr. at 197-98. After hearing argument on whether the defense had made a prima facie showing of intentional discrimination, and over the prosecutor's continued objection that no such showing had been made, the judge directed the prosecutor to provide race-neutral reasons for striking the two jurors. Id. at 199. Turning first to Mr. Porter, the prosecutor claimed that she had challenged him "due to his job in [New York City's Department of] Human Resources and the fact that he deals with Human Resources cases. . . ." Id. With respect to Ms. Brooks, the prosecutor explained that she was challenging her because of "her demeanor with me, the way she was looking at me, the interaction I had with her." Id. at 200. When the judge pressed the prosecutor to be more specific in explaining her challenge to Ms. Brooks, the following colloquy ensued:

[THE PROSECUTOR]: She was making faces at me while I was questioning her.

THE COURT: Making faces?

[THE PROSECUTOR]: Yes, Judge. And her questions — I find that the tone of her responses were [sic] very hostile. Based on that.
THE COURT: We must not have been listening and watching the same person because I didn't see any faces or hear any hostile answers.
[THE PROSECUTOR]: Well, Judge, I was the one that was questioning her, standing right before me.

THE COURT: Well, I'm looking right at her, also.

[THE PROSECUTOR]: Well, Judge, that's my answer.

THE COURT: Okay. As to juror number 3 [Mr. Porter,] I accept your reason and that will stand. If that's your reason for number 4 [Ms. Brooks], it's denied ...

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