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




 No. 42
 The People &c.,
         Respondent,
      v.
 Hanza Muhammad,
         Appellant.




 Paul J. Connolly, for appellant.
 Bradley W. Oastler, for respondent.




 RIVERA, J.:

       The trial judge is in charge of the courtroom and is ultimately responsible for

 ensuring that any limitation on a defendant’s right to a public trial conforms with

 constitutional dictates. At defendant’s trial, the judge delegated to court officers the


                                           -1-
                                             -2-                                        No. 42

implementation of the judge’s general policy of prohibiting the public from entering or

exiting the courtroom while a witness testifies. We agree with the Appellate Division that

members of the public were excluded from the courtroom at a time when they should have

had access under the terms of the extant policy. But, contrary to the Appellate Division’s

conclusion, that error directly resulted from the acts of court officials enforcing the trial

judge’s order. Therefore, the court violated defendant’s right to a public trial.

                                               I.

                                              A.

       During defendant Hanza Muhammad’s trial for second-degree murder and second-

degree criminal possession of a weapon, the judge continued his policy that no person

would be permitted to enter or exit the courtroom while a witness testifies. The judge

consistently applied this policy in each trial he conducted “because [he] believe[d] that

spectator traffic during the course of testimony is distracting to the witnesses, the attorneys,

certainly the jurors, and [the] court reporter.” Defendant did not object to the policy.

       On the morning of the third day of trial and second day of testimony, several

members of the victim’s family and defendant’s supporters began arriving at the courtroom

doors around 8:50 a.m. In accordance with the court’s rule, they turned in their cellular

phones to the court officer standing outside the courtroom doors in anticipation of being

allowed entry when the court opened. They then waited in the hallway directly across from

the officer.

       At approximately 9:40 a.m. the prosecution’s witness was escorted by investigators

through the doors and into the courtroom. By this time, several individuals had arrived and

                                             -2-
                                           -3-                                       No. 42

were standing or sitting across from the courtroom doors. Before the witness entered,

individuals from the prosecutor’s office, as well as defense counsel and several court

officers, periodically entered and exited the courtroom.

       After the prosecution completed the direct examination of the witness, and a few

minutes into defense counsel’s cross examination, the prosecutor learned and immediately

informed the court that several members of the public were waiting in the hallway. The

trial judge interrupted the proceedings and ordered the jury out of the courtroom to allow

the public waiting outside to enter. Once the public was seated inside, the trial judge

recalled the jury and defense counsel continued with the cross examination.



                                            B.

       The following day, after several off-the-record discussions with counsel, the trial

judge held a full-day fact-finding hearing on the prior morning’s implementation of the

judge’s general policy. The judge called three witnesses. First, the court officer assigned

to collect mobile phones from observers wishing to enter the courtroom testified that she

knew the trial judge’s policy was that no one could enter or exit while a witness was on the

stand. However, she did not hear the jury enter the courtroom and did not know when the

witness started to testify, although she observed the witness as he was escorted into the

courtroom. Her only conversations with the public were to instruct a couple of persons to

turn their shirts inside out and another to put a lanyard hanging around their neck inside

their shirt. She did not observe any individual being prevented from entering the courtroom

but acknowledged that she did not communicate to anybody that the courtroom was open.

                                           -3-
                                            -4-                                      No. 42

She further testified that nobody in the hallway asked to enter the courtroom. The court

officer explained that “[i]t was like they were just standing there waiting, and this was

before I took their phones, and then I announced – I said, ‘it should be soon, let me take

your phones so there’s not a big rush.’ ” The court officer acknowledged that when people

are waiting to enter the courtroom they usually sit on the bench across the hallway and,

thus, the persons in the hallway that morning may also have been waiting for permission

to enter:

              “Q:    So would it be fair to say that they assumed that until
                     you give them affirmative permission to come in the
                     courtroom that they have to stay out?

              A:     I assume, but I can’t be sure.

              Q:     Okay. And maybe not you giving them permission but
                     some court officer giving them permission to enter?

              A:     I – I would assume.”

       Two other court officers who were stationed inside the courtroom that morning also

testified. One officer stated that the courtroom was open by 8:50 a.m. and that he brought

in the jury at approximately 9:00 a.m. Although he testified that he did not prevent anyone

from entering the courtroom or observe another officer do so, he acknowledged that he

“had no idea what happened at the front door.” The other officer testified that, upon

instruction from the judge, he opened the doors between 8:45 and 8:50 a.m. and informed

the court officer stationed in the hallway that the courtroom was open and the public could

enter. At that moment, he noticed two people sitting on the bench outside the courtroom

door and told them they could enter, but they responded that they were attending a different


                                            -4-
                                           -5-                                       No. 42

trial next door. The court officer then resumed his position inside, next to the bench and

witness stand. He did not lock the door or have knowledge of anyone else doing so and did

not himself observe another court officer prevent anyone from entering. He acknowledged

that he could not see the hallway from his position but could see shadows or some people

standing outside through the door window. After the court stopped the testimony and

ordered the public to be admitted, the officer observed approximately 20 to 25 people enter

the courtroom.

       The prosecutor called three witnesses associated with the District Attorney’s Office

who attended the trial that morning strictly as observers. Another prosecutor who was not

assigned to defendant’s case testified that he arrived around 10 a.m. and noticed a group of

people waiting outside the courtroom in the hallway. Upon his request, court staff permitted

him to enter an anteroom immediately past the front doors but outside the courtroom to

observe the trial through a crack in the inner doorway. He saw a witness on the stand and,

after about five minutes, sent the following text to the prosecutor inside: “Is it a problem

that the defendant’s family was kept out of the courtroom for the nonmaterial witness?

Court staff is buzzing out here about it.” After the doors were opened, people began

entering the courtroom and the prosecutor followed them in. Next, a summer intern in the

District Attorney’s office testified that she freely entered and exited the courtroom that

morning. Specifically, when she first arrived just before 9:00 a.m. she entered the

courtroom and observed someone being arraigned. She then exited and returned a few

minutes later—walking straight by the officer at the door—and sat inside before the witness

took the stand. She acknowledged that others had to line up and surrender their phones at

                                           -5-
                                           -6-                                       No. 42

the desk outside the courtroom doors before entering. Lastly, a Syracuse police officer

testified that he arrived just before 9 a.m., before the trial commenced, and observed the

victim’s stepmother and other family members sitting on the bench outside the courtroom.

Because he knew the stepmother, he approached and spoke with her briefly, telling her he

was going to observe the trial. He then walked into the courtroom and saw the witness take

the stand.

       Defendant called four witnesses who had been waiting outside the courtroom the

prior morning. Defendant’s witnesses generally testified that they were aware of the court’s

policy against entering and exiting the courtroom during witness testimony because they

were in court on the prior days when the court announced the policy. Two of the victim’s

family members testified that a court officer told them they could not enter the courtroom.

Those witnesses also testified that, while they were waiting in the hallway, the only people

they saw enter the courtroom were well-dressed White individuals who looked like interns.

One of the victim’s family members testified that she waited in the hallway to be

“respectful.” She further testified she believed the court staff knew she would want to come

into the courtroom as soon as it was open and waited for their permission to enter.

Defendant’s friend testified it was her understanding that the court officer collecting

phones would tell her whether she could enter the courtroom at the time she handed in her

phone. Defendant also called a police sergeant who arrived in the hallway after the witness

testimony began. She testified that she peeked in the courtroom, saw that a witness was

testifying, and kept people in the hallway because she did not receive “any indication from

the courtroom that the doors [we]re open to the public.”

                                           -6-
                                           -7-                                       No. 42




       The court, defendant and the attorneys then viewed the hallway surveillance video.

Although it has no audio, the video clearly depicts, among other things, that beginning at

8:58 a.m. a person arrived and sat on the bench directly across from the courtroom doors

and the court officer assigned to collect phones. At approximately 9:06 a.m., several mostly

African American individuals began arriving and approaching the court officer standing at

a table directly outside the courtroom doors. After turning in their phones to the officer,

they sat and stood in the hallway directly across from the courtroom. Eventually at around

10:20 a.m., court officers waived in the crowd that was waiting. The White individuals,

along with two or three African American individuals dressed in business attire, walked

around the court officers standing in front of the doors and entered without further

detainment while the court officers screened the African American individuals who were

waiting near the bench with hand-held metal detectors and checked their bags before

permitting them entry to the courtroom.*

       Following the hearing, the trial judge denied defendant’s motion for a mistrial,

holding that the court neither explicitly nor implicitly excluded members of the public

during the testimony of a witness and that court officers did not exclude anyone from the

courtroom when a witness was not testifying. The trial judge determined that defendant’s

witnesses at the hearing did not try to gain access to the courtroom and instead waited




*
  There is no indication in the record that the trial judge was aware anyone was waiting in
the hallway until he was so informed by the prosecutor.
                                           -7-
                                              -8-                                     No. 42

outside, apparently assuming that access was not permitted. Thus, defendant was not

deprived of his constitutional right to a public trial.



                                               C.

       The jury convicted defendant on both counts. The Appellate Division affirmed (

 [4th Dept 2022]). As relevant here, unlike the trial judge, the Appellate

Division determined that “people were excluded from the courtroom” (id. at 1582).

However, because the exclusion was caused “not by any affirmative act of the court, but

instead by a confluence of factors outside the court’s knowledge and control,” the trial

court did not violate defendant’s right to a public trial (id.). Although the Appellate

Division “d[id] not approve of the [trial] court’s standing policy of essentially locking the

courtroom doors while witnesses are on the stand,” it did not address the issue because

defendant failed to object at trial or challenge the policy before the Appellate Division (id.

at 1581). A Judge of this Court granted leave to appeal (

 [2022]). We now

reverse.



                                               II.

       Defendant claims that his Sixth Amendment right to a public trial was violated by

exclusion of members of the public because the trial judge failed to put in place procedures

to ensure that those who timely arrived in compliance with the judge’s policy were

permitted entry. We conclude that the exclusion of members of the public found by the

Appellate Division was a direct result of the trial judge’s affirmative acts and his staff’s

                                              -8-
                                             -9-                                        No. 42

implementation of the general policy which, in turn, violated defendant’s right to a public

trial.

                                              A.

         The Sixth Amendment right to a public trial is a “fundamental privilege of the

defendant in a criminal prosecution” (People v Martin, 

 [2011]).

“ ‘ “ ‘ The requirement of a public trial is for the benefit of the accused; that the public may

see that [the accused] is fairly dealt with and not unjustly condemned, and that the presence

of interested spectators may keep [the accused’s] triers keenly alive to a sense of their

responsibility and to the importance of their functions’ ” ’ ” (Waller v Georgia, 

 [1984], quoting Gannet Co., Inc. v DePasquale, 

 [1979], in turn quoting

In re Oliver, 

, 270 n 25 [1948], in turn quoting T Cooley, Constitutional

Limitations 647 [8th ed 1927]). “In addition to ensuring that judge and prosecutor carry

out their duties responsibly, a public trial encourages witnesses to come forward and

discourages perjury” (id.). Under rare circumstances, this fundamental right may give way

to “other rights or interests” (Waller, 

). However, “the presumption of

openness is not easily overcome” (People v Colon, 

 [1988]). In sum, “an

affirmative act by the trial court excluding persons from the courtroom” without lawful

justification constitutes a violation of the defendant’s right to a public trial (People v

Peterson, 

 [1993]). And in such case, reversal of the defendant’s

conviction is mandated because it “is the only realistic means to implement this important




                                             -9-
                                           - 10 -                                    No. 42

constitutional guarantee” (see Martin, 

; see also People v Jones, 

 [1979]; People v Jelke, 

 [1954]).

                                            B.

       It is undisputed that the trial judge applied his general courtroom closure policy at

defendant’s trial that no one could enter or exit during testimony and that the judge

delegated the policy’s implementation to the court officers. Unquestionably, the officers

did not properly execute that policy here, as several members of the public who appeared

at the courtroom doors before the witness’s testimony started were excluded until after the

prosecutor’s direct examination and the first minutes of the cross examination. Thus, the

Appellate Division properly concluded that members of the public “were excluded from

the courtroom” (206 AD3d at 1582). However, contrary to the Appellate Division’s further

conclusion, the exclusion resulted from at least two affirmative acts by the trial judge—the

adoption of the policy and its delegation to his staff—and thus the judge caused the

unjustified exclusion.

       As with all matters concerning the administration of the courtroom, the trial judge

was responsible for properly implementing the policy under its “inherent authority and the

affirmative obligation to control conduct and decorum in the courtroom, in order to

promote the fair administration of justice for all” (People v Nelson, 

[2016]; see Jelke, 308 at 63). The trial judge here recognized the same and relied on this

power over courtroom administration as the source of his authority for adopting his general

policy. When the judge delegated implementation of the policy to the court officers they,

in turn, acted at his direction as his agents. The Sixth Amendment requires trial courts “to

                                           - 10 -
                                            - 11 -                                    No. 42

take every reasonable measure to accommodate public attendance at criminal trials”

(Presley v Georgia, 

 [2010]), and the court was required to do more than

the record reveals here such that its policy was properly implemented. The judge’s failure

to do so caused an exclusion of members of the public without justification and, therefore,

violated defendant’s right to a public trial (see e.g. People v Moise, 

 [1st

Dept 2013]).

       That no officer physically prevented anyone from entering at a time when a witness

was not testifying misses the point that members of the public were excluded as a direct

consequence of the implementation of the judge’s policy. Contrary to the judge’s

suggestion, it was not the responsibility of the members of the public to ask the officers if

the courtroom was open. Indeed, under the circumstances why would they? Logically, once

they turned in their phones or adjusted their attire as directed by the court officer standing

in front of the courtroom doors, they would have rightly expected, and waited, until further

instruction as to whether and when they could enter.

       This did not escape the only court officer stationed outside the courtroom, who

testified that she assumed persons waiting in the hallway would have understood that they

could not enter without affirmative permission. Her fellow officer apparently labored under

the same assumption because upon opening the courtroom that morning, he immediately

informed two people waiting directly across the hallway that they could enter. Furthermore,

as the surveillance video clearly depicts, the individuals waiting across the hallway were

ultimately allowed entry only after undergoing a security check, which suggests a shared

understanding that they could not simply walk through the doors into the courtroom after

                                            - 11 -
                                             - 12 -                                      No. 42

turning in their phones. Given these facts and the officers’ failure to notify those waiting

in the hallway that they could enter—for example, by verbal communication or placing a

sign indicating the courtroom was open—those individuals were unjustifiably excluded

from the courtroom at a time when the courtroom should have been open.

       The prosecution’s reliance on Peterson is misplaced. In Peterson—and Colon (

) and People v Glover (

 [1983]) cited therein—no person was

excluded pursuant to the court’s rule (see Peterson, 

 [holding that “(a)

denial of the public trial right requires an affirmative act by the trial court excluding persons

from the courtroom,” and a “brief and inadvertent continuation of a proper courtroom

closing, which was not noticed by any of the participants, did not violate defendant’s right

to a public trial”]; Colon, 

 [holding that locking the courtroom doors during

the jury charge does not constitute a “closure” because “the trial court’s action . . . does not

explicitly exclude anybody”]; Glover, 

 [holding that closure of the

courtroom did not deny defendant’s right to a public trial where “(t)here (wa)s no indication

that the court excluded or intended to exclude any member of the public who sought to

attend the trial”]). Here, members of the public were in fact excluded, and as we have

explained above, that exclusion tracks back to the trial judge’s policy.

       Our decision on this issue renders it unnecessary for us to address defendant’s

remaining claims. And although we have considered defendant’s challenge to the public

exclusion based on the policy as implemented, our holding should not be interpreted as an

endorsement of the trial judge’s general policy prohibiting ingress and egress during

witness testimony. As in Colon, we have no occasion, at this time, to consider “the

                                             - 12 -
                                            - 13 -                                    No. 42

propriety of routinely locking the doors during other portions of the trial” (

).



                                              III.

        We conclude that, because the trial judge adopted the policy of routinely prohibiting

entry to the courtroom, he ultimately bore responsibility for its proper implementation. The

misapplication of the judge’s policy led to an unjustified exclusion of the public and

therefore violated defendant’s right to a public trial.

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

ordered.




                                            - 13 -
GARCIA, J. (concurring):

      I agree that, under the unique facts of this case, defendant’s right to a public trial

was violated, and that defendant is therefore entitled to a new trial. Defendant did not

preserve an objection to the propriety of the trial court’s general policy prohibiting

                                           -1-
                                            -2-                                       No. 42

spectator traffic during witness testimony, and therefore the issue of whether that policy is

a “reasonable restriction upon the time and manner of public access to the trial” is not

before us (see People v Colon, 

 [1988]). I would hold, however,

that the court’s implementation of that policy here resulted in an unconstitutional closure.

       “Trial courts have the discretion to exclude the public, although they must exercise

that discretion ‘sparingly . . . and then, only when unusual circumstances necessitate it’ ”

(People v Jones, 

 [2001], quoting People v Martinez, 

[1993]). The court must be “ ‘careful enough’ ” to ensure “ ‘that the defendant’s right to a

public trial is not being sacrificed for less than compelling reasons’ ” (People v Peterson,

 [2d Dept 1992], affd, 

, quoting People v Jones, 

 [1979]). The record from the hearing below establishes that, due to a

miscommunication in the court officers’ enforcement of the court’s policy, officers

prevented the public from entering the courtroom during a period that the courtroom should

have been open pursuant to the court’s policy.         That exclusion was more than an

“inadvertent lapse” resulting in a “continuation of a proper courtroom closing” (see People

v Peterson, 

 [1993]). Rather, court personnel affirmatively kept out

members of the public before the proceedings began and that closure continued for a

significant period. The closure, though mistaken, cannot be deemed inadvertent.




                                            -2-
                                         -3-                                    No. 42




Order reversed and a new trial ordered. Opinion by Judge Rivera. Chief Judge Wilson
and Judges Cannataro, Troutman and Halligan concur. Judge Garcia concurs in result in
an opinion, in which Judge Singas concurs.


Decided May 23, 2023




                                         -3-