Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered July 5, 2011.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.
The judgment convicted defendant, upon a jury verdict, of burglary in the second degree, attempted sodomy in the first degree, sodomy in the first degree (two counts) and sexual abuse in the first degree.
It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence on the conviction of burglary in the second degree
is dismissed, the judgment is reversed on the law and a new trial is granted on counts two through five and seven of the superseding indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the second degree (Penal Law § 140.25 ), sexual abuse in the first degree (§ 130.65 ), and two counts of sodomy in the first degree (former § 130.50 ). In appeal No. 2, defendant appeals from a resentence with respect to the conviction of burglary in the second degree.
With respect to appeal No. 1, we agree with defendant that reversal is required based on County Court's error in closing the courtroom. We note at the outset that, although we agree with the People that a defendant is required to preserve that contention for our review (see People v Borukhova, 89 AD3d 194, 225, lv denied 18 NY3d 881, rearg denied 18 NY3d 955; People v Varela, 22 AD3d 264, 264-265, lv denied 6 NY3d 781), we disagree with the People that defendant failed to make the appropriate objection. Although defendant's objection was made off the record, the parties and the court agreed during argument on defendant's post-trial motion to set aside the verdict that defendant had indeed objected to the court's procedure. It is well settled that a post-trial motion pursuant to CPL 330.30 cannot preserve a contention for review that is raised for the first time in the motion (see People v McFadden, 94 AD3d 1150, 1150; People v Jones, 85 AD3d 1667, 1668), but as noted that is not what occurred here inasmuch as defendant made an objection before jury selection. The objection merely was not placed on the record at that time. Here, the record establishes that "the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, [and thus] preservation was adequate" (People v Caban, 14 NY3d 369, 373).
We agree with defendant that the court erred in closing the courtroom to defendant's wife at the start of jury selection on the ground that there "wasn't any room" in the courtroom for her (see People v Martin, 16 NY3d 607, 611-612). As the Court of Appeals held in Martin, "[a] violation of the right to an open trial is not subject to harmless error analysis and a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee" (id. at 613 [internal quotation marks omitted]). We reject the contention of the People that the closure of the courtroom was so trivial that it did not violate defendant's right to a public trial (see id.). Even assuming, arguendo, that there is a "triviality" exception to the per se rule of reversal set forth in Martin (see Gibbons v Savage, 555 F3d 112, 119-121, cert denied ___ US ___, 130 S Ct 61), we conclude that neither the duration of the courtroom closure in this case nor the substance of the proceedings taking place during the closure may be characterized as "trivial" (cf. id. at 121).
Both defense counsel and defendant's wife submitted affidavits in which they averred that the wife was excluded from proceedings on the first morning of jury selection. According to the wife, she was excluded from the courtroom for approximately 1½ to 2 hours. During that period of time, the court read its preliminary instructions to the prospective jurors and asked the first panel of 21 prospective jurors to approach the podium individually to respond to four questions: (1) whether the prospective juror heard or read anything about the case; (2) whether the prospective juror or a close friend or relative had been the victim of a crime; (3) whether the prospective juror or a close friend or relative had been arrested or charged with a crime; and (4) whether the prospective juror could be fair and whether there was a compelling reason why he or she could not serve on the jury. Two prospective jurors were excused upon consent of the prosecutor and defense counsel.
The court then asked the remaining members of the panel whether they knew the prosecutor, the defense attorney, or defendant, whether they had any friends or relatives who were lawyers or worked in law enforcement, and whether they had previously served on a jury. After the prosecutor and defense counsel questioned the prospective jurors, the court held a sidebar with the attorneys to hear challenges to the panel members. The prosecutor exercised nine peremptory challenges, defense counsel exercised seven peremptory challenges, and five prospective jurors were seated and sworn. Thus here, as in Martin (16 NY3d at 613), it cannot be said that "nothing of significance happened" while defendant's wife was excluded from the courtroom (Gibbons, 555 F3d at 121).
We reject the contention of the People that the courtroom was only closed to defendant's wife until the first prospective juror was excused. The People rely on the fact that, at the start of jury selection, the court advised defense counsel that, "as soon as we start excusing [prospective jurors], there [would] be room" in the courtroom for defendant's wife. It is well settled that a courtroom is closed only by an affirmative act of the court (see People v Peterson, 81 NY2d 824, 825; see also Martin, 16 NY3d at 613). Here, defendant's wife averred that the court "addressed [her] directly and told [her] that [she] would need to wait outside the courtroom, but that a court attendant would come get [her] as soon as some [prospective] jurors were excused." While the wife was waiting in the hallway, she observed several prospective jurors leave the courtroom at one point, but "no one came to tell [her] that [she] should come in and [she] did not believe [she] should enter without being told to do so." Approximately 1½ to 2 hours later, a court officer finally came out into the hallway and told the wife that she could enter the courtroom. Under the circumstances of this case, in which the court specifically excluded the wife from the courtroom and it is undisputed ...