State of New York                                                         OPINION
Court of Appeals                                           This opinion is uncorrected and subject to revision
                                                             before publication in the New York Reports.




 No. 41
 The People &c.,
         Respondent,
      v.
 Dwight Reid,
         Appellant.




 Richard M. Greenberg, for appellant.
 Rachel Bond, for respondent.
 New York Civil Liberties Union, amicus curiae.




 CANNATARO, J.:

        On this appeal, we are asked to consider whether the trial court abused its discretion

 in ordering the courtroom closed to the public and all interested spectators for the last four

 days of defendant’s eight-day jury trial. Although the trial court summarized its reasons

 for the closure, it held no inquiry on the record to determine the necessity and scope of the
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closure (see generally People v Jones, 

 [1979], cert denied 

[1979]). Nor was there any showing that the closure was justified under the criteria set

forth by the U.S. Supreme Court in Waller v Georgia (

 [1984]). Thus, on the

record before us, we conclude that defendant’s Sixth Amendment right to a public trial was

violated and he is entitled to a new trial.

       Defendant was charged with second-degree murder and two counts of second-

degree weapon possession, both related to his alleged role in a fatal shooting. In the midst

of defendant’s jury trial, the People moved to close the courtroom, citing the fact that

photographs had been taken in the courtroom and posted on Instagram with the caption

“Free Dick Wolf”—which the prosecutor asserted was a reference to one of defendant’s

street names. After an off-the-record discussion with counsel, the court noted its concern

with the photographs, and added that

              “[p]eople in the courtroom have been very intimidating. . . .
              They intimidated a court reporter already. They stare people
              down. They’re staring up here. I am closing this courtroom
              based on the fact that now there are pictures that were taken in
              this courtroom. And I know that pictures can be taken very
              [surreptitiously] with a cellphone. You can look like you’re
              looking at your cellphone when you’re really taking pictures.
              But clearly pictures were taken in this courtroom by someone
              who had to have been sitting in this courtroom and pictures
              were taken outside the court. I’m closing the courtroom.”

       Defense counsel objected to the closure and proposed barring cellphones in the

courtroom as an alternative, stating that it would be unfair to exclude all spectators from

the trial based on the misconduct of a particular individual or group of individuals. The

court rejected counsel’s proposal and, in what it described as an effort to keep the jury from


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drawing negative inferences from the absence of any particular group of spectators, closed

the courtroom entirely, including to the victim’s family. The court explained that its

decision was based on the “cumulative” effect of various factors that created an atmosphere

of intimidation during the trial. Specifically, the court referred to unnamed spectators

associated with defendant who were acting, in the court’s view, in an “extremely

intimidating” manner. According to the court, there were “extremely long hard stares

coming from the audience.” The court also expanded upon its earlier statement regarding

the court reporter, explaining that the reporter had been “very shaken” by her interaction

days earlier with a group of unidentified spectators who purportedly asked if the reporter

was afraid to ride in an elevator with them. The court stated that the spectators were having

“a chilling [e]ffect,” and under the circumstances, the court did not “believe there [wa]s a

lesser remedy” than closure that could be imposed.

       Over the following four days, the court was closed to the public for the testimony

of several witnesses, summations, and the jury’s verdict. At the conclusion of trial, the

jury found defendant guilty as charged. Defendant appealed, and the Appellate Division

affirmed, holding that “[t]he court’s midtrial closure of the courtroom to all spectators for

the remainder of the trial was a provident exercise of discretion under the extraordinary

circumstances presented” (

, 475 [1st Dept 2022]). A Judge of this Court

granted defendant’s application for leave to appeal (

 [2022]).

       The constitutional right to a public trial “‘has long been regarded as a fundamental

privilege of the defendant in a criminal prosecution’” (People v Roberts, 

 [2018], quoting People v Martin, 

 [2011]). The presumption is that
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trials will be open to the public, and a trial court’s discretion to exclude the public from

criminal proceedings “must be exercised only when unusual circumstances necessitate it”

(Martin, 

 [internal quotation marks omitted]).

       In Waller v Georgia, the Supreme Court of the United States set forth criteria for

determining when a courtroom may be closed over a defendant’s objection. Specifically,

“the party seeking to close the [proceedings] must advance an overriding interest that is

likely to be prejudiced, the closure must be no broader than necessary to protect that

interest, the trial court must consider reasonable alternatives to closing the proceeding, and

it must make findings adequate to support the closure” (

). Subsequently, in

Presley v Georgia, the Supreme Court emphasized that “the particular interest, and threat

to that interest, must ‘be articulated along with findings specific enough that a reviewing

court can determine whether the closure order was properly entered’” (

[2010], quoting Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 

 [1984]; see Hinton, 

 [1972], cert denied 

 [1973] [“special

circumstances . . . warranting an exclusion” of the public must be “demonstrated”]).

        Waller’s requirements were not met in this case. The record indicates that some

 unidentified spectators shared photos of the trial on social media, but the People did not

 argue that the social media postings were intended to affect or influence the trial itself,

 and it bears noting that the photos admitted by the People depicted only images of

 defendant accompanied by court officers, not of jurors or witnesses. Moreover, although

 the trial court indicated that the purpose of the closure was to prevent intimidation of

 witnesses, court personnel and jurors by means of social media postings, “staring” in the

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                                          -5-                                       No. 41

courtroom, and other hostile interactions, the court failed to adequately describe the

particular acts and circumstances underlying its conclusion that intimidation was

occurring, or to identify the specific individuals who had engaged in such intimidation.

The record contains no discussion of the purported offenders, no evidence that any witness

was actually intimidated, and only vague descriptions of the purportedly intimidating

conduct.

      Although the prevention of intimidation by spectators during trial may very well

be an “overriding interest” that can support courtroom closure (see People v Ming Li, 

 [1998]), it is incumbent on the trial court to ensure that the record

adequately justifies its concerns and demonstrates that the identified interest would be

jeopardized absent a closure. Where closure is warranted, it must be tailored to address

the overriding interest. Here, the court ordered the broadest possible closure, completely

excluding all members of the public for the remainder of trial. On this sparse record the

closure was disproportionate in relation to the circumstances described.

      Further, “trial courts are required to consider alternatives to closure even when they

are not offered by the parties” (Presley, 

). Although a trial court need not

explicitly consider such alternatives on the record (see People v Echevarria, 

 [2013]), here, the court does not appear to have sufficiently considered whether less

drastic measures could have resolved troubling spectator behavior, such as addressing

those individuals or requesting that they alter their demeanor in the courtroom. Nor did

the court make additional efforts to identify particular offenders and exclude only those



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    individuals from the courtroom.1

          In short, the record before us does not demonstrate that “unusual circumstances

    necessitate[d]” closure of the courtroom (Martin, 

 [internal quotation

    marks and citation omitted]). Rather, the record demonstrates only a “mere possibility

    that [an] interest might be compromised by open court testimony[, which] does not justify

    abridgement of a defendant’s constitutional right to a public trial” (People v Ramos, 

, 506 [1997]).

          We emphasize that our decision should not be read as suggesting that a courtroom

    can never be closed based on the trial court’s observations of intimidation (or other

    prejudicial behavior) taking place in the courtroom.      Trial courts retain “inherent

    discretionary power . . . to close the courtroom” (Hinton, 

). However, that

    discretion must be “sparingly exercised” and invoked “only when unusual circumstances




1
  The Appellate Division incorrectly held that defendant “failed to preserve his arguments
that the court should have considered certain other alternatives[] and conducted a Hinton
hearing” (203 AD3d at 475). First, as we recognized in People v Alvarez (

[2012], certs denied 

, 947 [2013]), “[t]he obligation rests with the court to
consider alternatives, even where the parties themselves do not offer any” (id. at 80; see
also Presley, 

). Nor was defendant required to expressly request a “Hinton
hearing,” because a hearing is not mandatory in every case. A “Hinton hearing” is often
required in cases where closure is sought to protect the identity of an undercover police
officer (see People v Kin Kan, 

 [1991]; Jones, 

; Hinton,

). However, we have never held that a formal hearing is required for
every case in which circumstances might warrant closure (see Alvarez, 

;
Martin, 

; Ming Li, 

; People v Joseph, 

[1983]). To the contrary, we have explained that “there are times when careful inquiry
directed at counsel, the witness, or even the spectators present in the courtroom might be
enough” (Jones, 

). Defendant’s objection was sufficient to trigger the need
for such an inquiry and preserve the issue for appeal.
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                                            -7-                                      No. 41

 necessitate it” (id. at 76; see Ming Li, 

). When such unusual circumstances

 occur, it is incumbent on the court to ensure that the record adequately supports excluding

 members of the public. Here, the court failed to create a sufficient record to justify a

 complete closure of the courtroom and, as a result, the closure was not narrowly tailored

 to the interests sought to be protected.

       Defendant’s remaining argument is academic.

       Accordingly, the order of the Appellate Division should be reversed and a new trial

ordered.



Order reversed and a new trial ordered. Opinion by Judge Cannataro. Chief Judge Wilson
and Judges Rivera, Garcia, Singas and Troutman concur. Judge Halligan took no part.


Decided May 23, 2023




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