The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Leroy Hoyt brings this petition for a writ of habeas corpus challenging his conviction in the Supreme Court of New York, New York County, following a jury trial, of one count of Criminal Sale of a Controlled Substance in the Third Degree (New York Penal Law § 220.39). Hoyt was sentenced as a second-felony offender to an indeterminate prison term of five to ten years. Hoyt is currently incarcerated at Clinton Correctional Facility. For the reasons stated below, the petition should be denied.
Hoyt and his co-defendant, Gregory Hall, were arrested for selling $30 of crack cocaine to an undercover police officer on September 29, 1999. Following a mistrial, both men were jointly re-tried in December 2000, in the Supreme Court of New York, New York County.
1. Pre-Trial Closure Hearing
On November 30, 2000, the trial court held a pre-trial hearing pursuant to People v. Hinton, 31 N.Y.2d 71 (1972), to determine whether the courtroom should be closed during the testimony of the undercover police officer who had been involved in the sale of narcotics by Hoyt and Hall. See H. 1-37.*fn1 This officer, referred to as "UC 1809," testified that revealing his identity would affect his safety because of his "open investigations" in the area where the sale had occurred, and the "open cases" he had pending before the court. (H. 10, 12). The court ruled that the courtroom would be closed during UC 1809's testimony, but that at the request of the defendants, members of Hoyt's family and his counsel's colleagues would be permitted to enter the courtroom at all times. See H. 34; Petitioner's Memorandum of Law and Appendix in Support of Petition for Writ of Habeas Corpus, dated May 2005 (Docket #3) ("Pet. Mem."), at 4.
In the late evening of September 29, 1999, UC 1809 and several other officers set up a "buy-and-bust" operation near West 35th Street and Eighth Avenue in Manhattan. Hall approached UC 1809 and asked him whether he was "all right." UC 1809 replied, "I'm looking for rocks." (T. 229-35). Hall asked whether UC 1809 needed "dimes" -- referring to $10 bags of crack -- and UC 1809 said he wanted to buy three bags. (T. 235). UC 1809 followed Hall a couple blocks north, to 38th Street, where Hall crossed the street and returned with Hoyt. (T. 235-38). UC 1809 gave Hall $30 in pre-recorded buy money, Hall gave some of that money to Hoyt, and Hoyt gave Hall the drugs, which Hall then passed to UC 1809. (T. 238-42). UC 1809 crossed the street and radioed the other officers, who arrived shortly thereafter. (T. 243, 245-46). One officer spotted Hoyt and saw him drop a brown paper bag as the officers approached. The bag was later found to contain small plastic bags of crack cocaine. (T. 48-50, 96-98, 142, 154-57, 163, 172-73, 246). The officers also found $20 of the pre-recorded buy money in Hoyt's pocket. (T. 57-67, 138-39). UC 1809 confirmed to the other officers that Hoyt was one of the people who had sold him the drugs. (T. 50, 77).
Hoyt presented a defense of mistaken identity, claiming that he had been at a bar in the vicinity all evening, and was mistakenly stopped and arrested on his way home. He claimed he had never seen Hall before his arrest. (T. 391-433).
At the close of evidence, Hoyt's trial counsel moved for a mistrial, contending that his law partner had attempted to enter the courtroom during UC 1809's testimony "partially to give [counsel] pictures to show the undercover," but that he had been denied entry. (T. 455). Hoyt's counsel reminded the court that he had specifically requested that his colleagues have access to the courtroom at all times, and that the court had agreed to this. (T. 455). He stated that his partner nonetheless had been denied access to the court. (T. 455). Counsel also stated that he did not receive the pictures his partner had brought until after he had completed his cross-examination of UC 1809. (T. 455). He claimed that this was "a real Hinton violation" and told the court that his partner was available to testify regarding his attempt to enter the courtroom.
(T. 456). Hall's counsel stated that his office mate, who was also an attorney, had been denied entrance as well. (T. 456).
The trial judge stated that he would "assume" there had been a Hinton violation and "just accept" that counsel's partner had attempted to enter the courtroom and been denied access by the court officer. (T. 456-57). The court noted that it was "odd" that the partner, who apparently knew the courtroom well, had not called the courtroom directly, but had instead "abandon[ed] the effort." (T. 457-58). The court then denied counsel's motion for a mistrial. (T. 459).
The following day, the prosecutor stated that according to the court officer who had been guarding the door of the courtroom on the day in question, Hoyt's counsel's partner had not requested entry into the courtroom, but had only given the officer the photographs, presumably to deliver to Hoyt's counsel. (T. 605-06). Hoyt's counsel again offered the testimony of his colleague. (T. 606). The court declined this offer, but did request that the prosecutor put the name of the court officer on the record, "in case somebody decides to have him present." (T. 606). Following this, the court asked, "Who wants to say anything?" The conversation turned to the issue of a note from the jury, and there was no more discussion of the courtroom closure. (T. 606).
C. Request for Adjournment
At approximately 5:40 p.m. on Thursday, December 7, 2000, after the trial court had dismissed the alternate jurors and the jury had begun its deliberations, Hoyt's counsel requested that the court adjourn deliberations until the following Monday so that Hoyt, a practicing Muslim, could "observe his religious holiday and his First Amendment right." (T. 587). The trial court in Hoyt's previous trial had, apparently, granted such an adjournment, see Pet. Mem. at 7-8, and the court in the current trial had not scheduled any proceedings for the previous Friday, see id. at 8.
The trial judge denied the request for an adjournment, noting cases in which similar requests had been denied, but also observing that in those cases the jury had been sequestered, which it was not in the current case. (T. 588-89). The court then stated that "the [S]tate[']s paramount duty is to ensure a fair trial in a criminal action for both the defendant and People," and that, in the other cases the court had cited, the State's interest was "paramount to the individual defendant's right under the First Amendment, to exercise [his] religious freedoms."
(T. 589). The court also reminded counsel that the jury had been told prior to trial that "the case would be given to them Tuesday or Wednesday [and] that deliberations were entirely up to them in terms of the length." (T. 589). The court noted that the trial had already been delayed by a day due to the illness of UC 1809, and that this was the second trial of Hoyt and Hall, which "further exacerbates the circumstances and lingers [sic] the [S]tate[']s desire to have a resolution of this." (T. 589). The court concluded that "[t]o send these jurors out into the community at this juncture, doesn't satisfy the [S]tate[']s needs." (T. 590). The court later added that "everybody wants a verdict," and that "to the extent that people are out there for three days, [it] increases the possibility that somebody will get sick, get injured, have a family tragedy," and thus that "it just exacerbates the possibility of a retrial." (T. 599).
Hoyt's counsel argued that there were no "provisions or anything made so that he can pray here or at some local facility," and that in case the jury required readback of testimony, Hoyt would be missing for "that critical phase, to advise me or to help me." (T. 592). The court rejected these arguments and added that there was a "Muslim service across the street," although the judge stated that he could not guarantee that Hoyt would be able to attend, since the Department of Corrections had failed to transport a prisoner to such services on a prior occasion.
(T. 593-94). The judge declined to make any promises to Hoyt in this regard, because "when the time comes to deliver . . . hopes and promises are dashed." (T. 595). Hoyt's counsel responded that it was "a shame" that the court was making Hoyt "pick between those two choices," (T. 595), and that he was concerned that the jury would draw an adverse inference from Hoyt's likely absence. (T. 595).
The next day, Friday, December 8, 2000, Hoyt did not appear in court, and his counsel renewed his request for an adjournment. (T. 601). The court responded that an adjournment would cause the court to "lose control" of the jury, and that the "confluence of things make it seem to me, we don't want to second this trial [sic] and the [S]tate's interest in getting a verdict surpasses the defendant's right to be present at his verdict." (T. 603).
The jury then sent in a note that it was deadlocked, at which time Hoyt's counsel requested that the court inform the jury that Hoyt was not present because he was observing a religious holiday, and that the jury should draw no negative inference from that fact. (T. 606-07). The judge stated to the jury, "Mr. Hoyt is not here and he has a right not to be here. You should not draw any inference from his not being here." (T. 607). The court also ordered the jury to continue deliberations. (T. 608). When the jury left the courtroom to continue deliberations, Hoyt's counsel said, "You didn't charge no inference." The court replied, "I sort of did." Hoyt's counsel objected that the court had failed to charge that the jury should not draw a "negative" inference from Hoyt's absence, and that the charge as given implied that Hoyt "voluntarily absented himself." The court declined to bring the jury back. (T. 608-10).
Later that day, the jury found Hoyt guilty of one count of Criminal Sale of a Controlled Substance in the Third Degree and acquitted him of Criminal Possession of a Controlled Substance in the Third Degree. (T. 611). He was sentenced as a second-felony offender to a term of five to ten years' imprisonment. (S. 5-6).
Hoyt filed a direct appeal through appointed counsel, arguing that (1) he had been deprived of his right to a public trial by (a) the trial court's partial closure of the courtroom during the testimony of the undercover officer, who had failed to articulate a particular fear justifying such a closure, and (b) the denial of access to the courtroom experienced by Hoyt's counsel's partner; and (2) Hoyt had been denied his right to the free exercise of religion under the First Amendment, and his right to be present at trial under the Sixth and Fourteenth Amendments, by the trial court's refusal to adjourn jury deliberations to permit Hoyt to observe the Muslim holy day. See Brief for Defendant-Appellant, dated Jan. 2003 (reproduced as Ex. A to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed Jan. 9, 2006 (Docket #9) ("Opp. Decl.")), at 23-42. Hoyt also filed a pro se ...