author: Wachtler, J. Meyer, J. Chief Judge Cooke

text:
    In the Matter of Hearst Corporation et al., Appellants, v John J. Clyne, as Judge of the County Court of Albany County, et al., Respondents.
    Argued March 27, 1980;
    decided July 3, 1980

      POINTS OF COUNSEL

      Peter L. Danziger for appellants.
    I. The Sixth Amendment of the United States Constitution guarantees petitioners the right to attend guilty plea proceedings. (People v Selikoff, 35 NY2d 227; Henderson v Morgan, 426 US 637; Boykin v Alabama, 395 US 238; People v Gina M. M., 40 NY2d 595; People v Seaton, 19 NY2d 404; Matter of Oliver, 333 US 257; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368.) II. The First and Fourteenth Amendments of the United States Constitution guarantee petitioners the right to attend plea proceedings. (Gannett Co. v De Pasquale, 443 US 368; New York Times Co. v Sullivan, 376 US 254; Mills v Alabama, 384 US 214; Gitlow v New York, 268 US 652; Landmark Communications v Virginia, 435 US 829; Houchins v KQED, Inc., 438 US 1; Nebraska Press Assn. v Stuart, 427 US 539; Saxbe v Washington Post Co., 417 US 843.) III. Petitioners’ right to attend a plea proceeding is guaranteed by the freedom of speech and press clause of the New York State Constitution. (Matter of Madole v Barnes, 20 NY2d 169; East Meadow Community Concerts Assn. v Board of Educ., 19 NY2d 605; Matter of Figari v New York Tel. Co., 32 AD2d 434; Pickering v Board of Educ., 391 US 563; People v Jones, 47 NY2d 409; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Matter of Oliver v Postel, 30 NY2d 171; Matter of United Press Assns. v Valente, 308 NY 71; Matter of New York Times Co. v Starkey, 51 AD2d 60.) IV. The common law of New York recognizes the right of petitioners to attend plea proceedings. (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Lee v Brooklyn Union Pub. Co., 209 NY 245; People v Jones, 47 NY2d 409; People v Jones, 87 Misc 2d 931, 57 AD2d 1082, 44 NY2d 76; Matter of Rudd v Hazard, 266 NY 302; Crain v United States, 162 US 625; Maryland v Baltimore Radio Show, 338 US 912.) V. Section 4 of the Judiciary Law of this State requires that guilty plea proceedings remain open to the public. (Matter of O’Connell, 90 Misc 2d 555; Lee v Brooklyn Union Pub. Co., 209 NY 245; Matter of United Press Assns. v Valente, 308 NY 71; Matter of Oliver v Postel, 30 NY2d 171; Craig v Harney, 331 US 367; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368.) VI. Closure of the plea proceeding without granting petitioners an opportunity to be heard violated petitioners’ constitutional, statutory and common-law rights. (People v Hinton, 31 NY2d 71; United States v Bell, 464 F2d 667, 409 US 991; Carroll v Princess Anne, 393 US 175; Stuart v Palmer, 74 NY 183; Near v Minnesota, 283 US 697; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Freedman v Maryland, 380 US 51; United States v Schiavo, 504 F2d 1, cert den sub nom. Ditter v Philadelphia Newspapers, 419 US 1096; Matter of New York Times Co. v Starkey, 51 AD2d 60.)

      Robert G. Lyman, County Attorney (William J. Conboy, II, of counsel), for John J. Clyne, respondent.
    I. This appeal must be dismissed upon the ground that no substantial constitutional question is directly involved. (Matter of Westchester Rockland Newspapers v Leggett, 70 AD2d 1066.) II. This proceeding presents neither questions likely to recur nor issues of sufficient importance and interest to justify this court’s entertaining same. (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Matter of Oliver v Postel, 30 NY2d 171; People v Jelke, 308 NY 56.) III. These petitioners-appellants waived any rights which they may have had to object to the closure in issue. (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368.) IV. The plea proceeding at issue herein was in fact a pretrial proceeding and not the equivalent of a trial. (Boykin v Alabama, 395 US 238; People v Serrano, 15 NY2d 304; People v Seaton, 19 NY2d 404; People v Gina M. M., 40 NY2d 595; People ex rel. Steckler v Warden of City Prison, 259 NY 430; Maurer v People, 43 NY 1; People v Anderson, 16 NY2d 282; People v Jones, 87 Misc 2d 931, 57 AD2d 1082, 44 NY2d 76.) V. The order of exclusion at issue herein was a necessary and proper exercise of judicial discretion. VI. The trial court in the plea proceeding at issue had the inherent power to close the courtroom. VII. The closure at issue herein did not deprive petitioners-appellants of any due process.

      Sol Greenberg, District Attorney (George H. Barber of counsel), for Sol Greenberg, respondent.
    I. A criminal defendant and the people of the State of New York are entitled to the unimpaired right of a fair trial. (Sheppard v Maxwell, 384 US 333; Nebraska Press Assn. v Stuart, 427 US 539; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Matter of Murchison, 349 US 133; People v McLaughlin, 150 NY 365; Estes v Texas, 381 US 532; People v Thomas, 47 NY2d 37.) II. The Sixth Amendment does not require public attendance at a guilty plea. (Marshall v United States, 360 US 310; Michelson v United States, 335 US 469; Matter of Rudd v Hazard, 266 NY 302.) III. The First Amendment does not guarantee public attendance at a guilty plea. (Matter of Gannett Co. v De Pasquale, 43 NY2d 370.) IV. The New York State Constitution does not require public access to a guilty plea. (People v Nicholas, 35 AD2d 18.) V. There are exceptions to the general rule in New York that trials should be public. (Matter of Rudd v Hazard, 266 NY 302.) VI. Section 4 of the Judiciary Law does not require all Criminal Court proceedings to be public. (Matter of Oliver v Postel, 30 NY2d 171; United Press Assns. v Valente, 308 NY 71; People v Nicholas, 35 AD2d 18; People v Rickenbacker, 50 AD2d 566.) VII. The closure of the guilty plea proceeding without notice was proper and necessary. (Matter of Gannett Co. v De Pasquale, 43 NY2d 370; People v Darden, 34 NY2d 177; People v Devine, 80 Misc 2d 641.) VIII. In the event courtroom was not closed and defendant Du Bray could not obtain a fair trial in Albany County, he would have been required to request a change of venue or surrender his right to a jury trial. (Marshall v United States, 360 US 310; Michelson v United States, 335 US 469; Patterson v Colorado, 205 US 454; Sheppard v Maxwell, 384 US 333.) IX. There was no alternative that would have preserved the fair trial rights of defendant Du Bray other than the closure of the courtroom during defendant Marathon’s guilty plea. (Nebraska Press Assn. v Stuart, 427 US 539.)

      Robert C. Bernius for Binghamton Press Company, Inc., and others, amici curiae.

    I. This court should articulate specific guidelines which disfavor in camera proceedings. (People v Jones, 47 NY2d 409; Matter of Oliver, 333 US 257; United States v Cianfrani, 573 F2d 835; Levine v United States, 362 US 610; Reynolds v United States, 98 US 145; Estes v Texas, 381 US 532; Sheppard v Maxwell, 384 US 333; Nebraska Press Assn. v Stuart, 427 US 539; People v Hinton, 31 NY2d 71.) II. Amici’s guidelines achieve the appropriate balance. (United States v Cores, 356 US 405; People v Goldswer, 39 NY2d 656;
      People v Moore, 46 NY2d 1; People v Briggs, 38 NY2d 319; Pennekamp v Florida, 328 US 331; Carroll v Princess Anne, 393 US 175; Shuttlesworth v Birmingham, 394 US 147; Fuentes v Shevin, 407 US 67; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Boddie v Connecticut, 401 US 371.) III. Amici’s guidelines are constitutionally mandated. (Duncan v Louisiana, 391 US 145; Shapiro v Thompson, 394 US 618; Poe v Ullman, 367 US 497; Harper v Virginia Bd. of Elections, 383 US 663; Matter of Winship, 397 US 885; Moore v East Cleveland, 431 US 494; Yick Wo v Hopkins, 118 US 356.)
   OPINION OF THE COURT

Wachtler, J.

The petitioners in this article 78 proceeding are the publisher of the Albany Times-Union, a daily newspaper, and Shirley Armstrong, a reporter for that newspaper. The respondent, John J. Clyne, is a Judge of the Albany County Court.

In March of 1979 Judge Clyne was conducting a joint suppression hearing in the criminal case of Alexander Marathon and William Du Bray, who had been indicted for the crimes of robbery in the first degree, burglary in the first degree and grand larceny in the second degree. The hearings were closed to the public and press on the motion of the defendants, without objection by the prosecutor and without a hearing. Armstrong, the court reporter for the Times-Union, knew the hearings were closed and the courtroom doors locked, but was sufficiently interested in the proceedings to periodically walk by the courtroom to observe whatever she could.

On March 7, during one of these periodic observations, Armstrong noticed the attorney for Du Bray, one of the codefendants, standing outside the courtroom door. On the assumption that something other than a suppression hearing was in progess Armstrong tried the courtroom door but found it locked. She then learned from Du Bray’s attorney that Judge Clyne, behind closed doors, had heard and granted a motion to close a proceeding during which Marathon was expected to enter a plea. The reporter, Armstrong, then knocked on the courtroom door. There was no response. After about 15 minutes the doors opened and she learned from Judge Clyne that Marathon had indeed entered a guilty plea. The Judge, however, refused petitioners’ request for a transcript of the plea proceeding or to direct the court stenographer to read back the minutes of the proceeding.

On March 12, prior to trial, the other defendant, Du Bray, also entered a plea of guilty before Judge Clyne. Thereafter Judge Clyne permitted the petitioners to obtain a copy of the transcript of the closed plea proceeding; that transcript has now been furnished to them and forms a part of the record on this appeal.

The transcript of the closed proceeding.held March 7, which is the sole concern of this appeal, indicates that at the very commencement of the already closed suppression hearing which had been adjourned from March 5, Marathon’s attorney orally moved to close the courtroom to all persons except Marathon, his attorney, and court personnel. The District Attorney joined the motion. Without taking evidence or hearing argument from anyone Judge Clyne immediately granted the motion, even excluding the codefendant Du Bray and his attorney from the courtroom, and had the doors secured. In sworn testimony Marathon then confessed his own participation in the crime for which he was indicted, inculpated his codefendant Du Bray, and was permitted to enter a plea of guilty to one count of the indictment.

The petitioners brought this proceeding seeking a declaration that the closure of the plea taking was illegal, and for an injunction prohibiting such closures in the future unless members of the press are afforded an opportunity to be heard.

The Appellate Division concluded that the closure was a proper exercise of the trial court’s discretion and dismissed the petition. Petitioners appealed. We conclude that the case is moot and that there is no sufficient reason for this court to consider the merits of the appeal; however, for the reasons which follow, the order of the Appellate Division should be reversed and remitted for dismissal.

It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal (Matter of State Ind. Comm., 224 NY 13, 16; California v San Pablo & Tulare R. R, 149 US 308, 314-315). This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary.

Our particular concern on this appeal is with that facet of the principle which ordinarily precludes courts from considering questions which, although once live, have become moot by passage of time or change in circumstances. In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. On the facts of the instant case, where the underlying plea proceeding had been long concluded and the transcript had been furnished to the petitioners at the time this action was commenced (cf. Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 436) we conclude that the rights of the parties cannot be affected by the determination of this appeal and it is therefore moot. Because we conclude that the appeal is moot it may not properly be decided by this court unless it is found to be within the exception to the doctrine which permits the courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable (see Roe v Wade, 410 US 113, 125).

In this court the exception to the doctrine of mootness has been subject over the years to a variety of formulations. However, examination of the cases in which our court has found an exception to the doctrine discloses three common factors: (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues. After careful review we are persuaded that the case before us presents no questions the fundamental underlying principles of which have not already been declared by this court, and that this case is, therefore; not of the class that should be preserved as an exception to the mootness doctrine.

We acknowledge, as we have before, the very substantial character of the interests represented by the petitioners in this proceeding. We also note that questions such as the one posed may occasionally escape review. It is for this reason that on occasion we have entertained appeals even though the issues in the particular controversy have been resolved. However, as our court only recently has set forth in some detail the requirements that must be fulfilled before a judicial proceeding in this State may be closed to the public and press, no sufficiently useful purpose would be served in this instance by our retaining the appeal notwithstanding that the underlying controversy is now moot.

It has, of course, long been the law in this State that all judicial proceedings, both civil and criminal, are presumptively open to the public (Judiciary Law, § 4; Lee v Brooklyn Union Pub. Co., 209 NY 245) and that a proceeding at which a criminal defendant enters a plea of guilty is indisputedly a substitute for a trial (People ex rel. Carr v Martin, 286 NY 27, 32). Indeed, in Matter of Gannett Co. v De Pasquale (43 NY2d 370) it was only by distinguishing the pretrial and evidentiary nature of the proceeding at issue that this court could conclude that such a proceeding should ordinarily be closed to the public and press (Gannett, supra, at p 380). We were careful to note in Gannett (at p 378) that, "In the case now before us, the Trial Judge was not presiding over a trial on the merits”.

In Matter of Westchester Rockland Newspapers v Leggett, (48 NY2d 430, supra), which was decided by this court after the decision of the Appellate Division in the instant case and which was obviously not available to inform either the trial or the appellate court, the issue was closure of a pretrial competency hearing. In that case even the pretrial nature of the proceeding was considered insufficient to nullify the presumption that all judicial proceedings are to be open. Thus the dissent is flatly incorrect in its statement that by dismissing this appeal for mootness we are disposed to permit trials to be closed to the public on the same basis as pretrial proceedings. On the contrary, we have distinguished between pretrial and trial closures and expressed our consciousness of the danger inherent in permitting too casual a closure of even pretrial proceedings: "At the present time, in fact in most criminal cases, there are only pretrial proceedings. Thus if the public is routinely excluded from all proceedings prior to trial, most of the work of the criminal courts will be done behind closed doors” (Matter of Westchester Rockland Newspapers v Leggett, supra, at p 440).

Our decisions in Gannett (supra) and Leggett (supra) laid down the procedural framework within which the possibility of closure must be considered. We conclude, therefore, that inasmuch as the principles governing fair trial-free press issues which might have been developed by consideration of the instant case have already been largely declared by our decisions in Gannett and Leggett, in this instance there is no sufficient reason to depart from the normal jurisprudential principle which calls for judicial restraint when the particular controversy has become moot.

More than that, we are convinced that there is a good reason in the circumstances of this case not to entertain this appeal for the purpose of extrapolating or refining the principles which we have declared. The closing of the plea hearing here occurred while the appeal from our Gannett decision was pending before the United States Supreme Court and some months before our decision in the Leggett case. We cannot conclude that the trial court would have followed the procedures which he did or that he would necessarily have reached the same conclusion had our decision in Leggett preceded the hearing. While we can anticipate that the implementation of the principles that we have declared will not always be easy, we have no reason to question the readiness or capacity of the Judges at nisi prius to seek to implement them appropriately with diligence, faithfulness and imagination. We conceive our jurisprudential role in this field as one of supervising and monitoring the dispositions made by our lower courts after we declare the applicable principles, rather than retrospectively appraising conduct of Trial Judges that preceded our declarations.

Other considerations also support our conclusion that this appeal should not be entertained. We are concerned with the vitality and fundamental soundness of our jurisprudence.

The engine of the common law is inductive reasoning. It proceeds from the particular to the general. It is an experimental method which builds its rules in tiny increments, case-by-case. It is cautious advance always a step at a time. The essence of its method is the continual testing and retesting of its principles in "those great laboratories of the law, the courts of justice” (Smith, Jurisprudence, p 21).

Conscious judicial restraint is essential — its absence diminishes the craftsmanship of the courts and debases the judicial product. A common-law Judge will not reach to decide a question not properly before him. Nor will he attempt to state a broad rule except when absolutely required — and then it will be cast in terms which permit it to be moulded in light of the experience of those who must work with it. A newly articulated rule should not be immediately recast "for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible” (Smith, Jurisprudence, p 21).

Finally, it must be explicitly stated that in dismissing the present appeal as moot we express no view on the merits. Our disposition here is not to be read as any withdrawal from, addition to, or elaboration on our opinions in Gannett and Leggett. It is entirely incorrect to suggest otherwise. Nor should our dismissal be interpreted as presaging a disposition to decline on grounds of mootness to entertain appeals in future fair-trial, free-press cases. We recognize, of course, that cases in this area of the law, because of considerations of timing, would often, even usually, evade review if appeals were uniformly to be dismissed for mootness. We shall continue to resolve each case in this field on the basis of its individual characteristics and merits, only one aspect of which will be its mootness, if moot it is.

Concluding as we do that the appeal is moot and not of a character which should be preserved for review, the appeal should be dismissed. In this case, however, because the Appellate Division had no opportunity to consider the matter in light of our decision in Leggett (supra) we should reverse and remit with directions to dismiss solely on the ground of mootness, in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent (see Matter of Adirondack League Club v Board of Black Riv. Regulating Dist., 301 NY 219, 223; cf. United States v Munsingwear, 340 US 36, 39; United States v Alaska S. S. Co., 253 US 113,115).

Meyer, J.

(concurring). I concur fully in Judge Wachtler’s opinion and write only because where the dissent finds implications in that opinion which "do not bode well for the future of public trials in this State” (p 723), I find in the dissent suggestions which, if they become the governing rule, may adversely affect the individual’s right to a fair trial.

I, of course, do not suggest that the media are to be regularly, or even often, excluded from the courtroom. What I am urging is that the problem must be analyzed not in terms of categories and classifications but of the rights affected, and that, without a very much clearer demonstration that the public’s interest cannot be reasonably protected without infringing individual rights than has been made, the rights of the individual on trial may not be subordinated to the rights of the public to know what goes on in a courtroom or how the system of justice is functioning.

The genius of the American constitutional experiment has been the protections it affords individuals against oppression by the majority, whether in the form of star chamber proceedings or of stadium trials, the result of either of which is an equally foregone conclusion. Important as it is that justice appear to the public to be done, in final analysis the public is grossly disserved if it not in fact be done in each individual case.

Resolution of the instant case, were it to be decided on the merits, would turn not on whether the taking of a guilty plea is the equivalent of a trial or more nearly a preliminary proceeding, or whether the fair trial rights at stake were those of the pleading defendant or his codefendant. The fact is, as both we and the United States Supreme Court have recognized, that there are occasions when parts of trials, as well as of pretrial proceedings, may constitutionally be closed (Gannett Co. v De Pasquale, 443 US 368, 388, n 19, and cases cited; People v Jones, 47 NY2d 409; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 377-378, affd 443 US 368), though as we have made clear the discretion to do so is to be "sparingly exercised and then, only when unusual circumstances necessitate it” (People v Hinton, 31 NY2d 71, 76; accord: Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 441). Closure during trial, moreover, will usually be to protect some interest of a third person or the public, rather than of the person on trial (to protect the public interest in not revealing the identity of an informer, People v Jones, supra; People v Hinton, supra; see Proposed Code of Evidence for the State of New York, § 510; to protect the life of a witness or shield him or her from embarrassment, People v Hagan, 24 NY2d 395, cert den 396 US 886; People v Smallwood, 31 NY2d 750; United States ex rel. Smallwood v La Valle, 377 F Supp 1148, affd 508 F2d 837, cert den 421 US 920; see Judiciary Law, § 4; to protect the interests of the defendant and the public in orderly trial, United States ex rel. Orlando v Fay, 350 F2d 967).

Nor can I accept the dissent’s assumption that there is an "absence of prejudice” to codefendant Du Bray in permitting Marathon’s guilty plea to be taken in open court. Short of publishing a confession by Du Bray before it has been ruled admissible, nothing could be more devastating to his rights than Marathon’s accusatory words. Given in a plea proceeding, such words are usually the quid pro quo for some favor of the law, generally a lesser sentence. To permit such information to get to potential jurors without the prophylaxis of cross-examination pointedly indicating the self-serving nature of the accusation is materially to disadvantage such a codefendant, for cross-examination when it does occur will be less effective than it would have been had the accusation not come to the jury in advance of trial and with the imprimatur of the press. It is possible to disadvantage such a codefendant in an additional way which cannot be known before trial. It is not unknown for a person in Marathon’s position to recant when called to testify at his codefendant’s trial. In such a case his statement about the codefendant at his own guilty plea "may be received only for the purpose of impeaching” him "and does not constitute evidence in chief’ (GPL 60.35, subd 2). While the Trial Judge must so instruct the jury (id.), such an instruction, of questionable psychological value in any event, will be even less effective than usual because the accusation came to the jury in advance of trial and with the imprimatur of the press.

The problem that arises when the issue is discussed in terms of categories rather than effect on individual rights is well illustrated by the present case. The dissent sees the closure here involved as casting "a veil of secrecy over the major component of the criminal justice system” (p 728) and the fact that the pleading defendant might implicate his codefendant as insufficient justification for closure (p 727). In my view there is a ready means of protecting the public’s interest in the Marathon-Du Bray trials without sacrificing Du Bray’s clear right not to have the jury pool for his trial, scheduled to begin a few days later, tainted by media accounts of Marathon’s plea statements implicating him, and the number of plea proceedings in which, to protect the rights of a codefendant, closure of part or all of the plea proceeding might occur is an insignificiant part of the criminal justice system. So far as the record and briefs reveal (including the brief of amici which catalogues a number of recent closures) this is the first such case.

The tension between public and individual interests that arises over an issue such as whether by closing so much of a plea proceeding as relates to him a codefendant should be protected against revelation in advance of his trial of the pleading defendant’s accusations against him, arises not because of the presence of media representatives in the courtroom, but because it is a constitutional absolute that what transpires in open court is public property and may be immediately disseminated. Responsible media often will delay publication nonethless, but quite properly are unwilling to permit the invasion of First Amendment rights that would be involved in permitting the courts to tell them when they can publish. Yet, just as not all Judges are exemplars of their craft, neither are all editors able to perceive in their highly competitive profession the value to individual rights of delaying publication. The antidote for the nonexemplary Judge is to keep courtrooms open to the fullest extent consistent with individual rights. The antidote for the unresponsive or irresponsible editor is to close the courtroom when there is a real probability that publication of what is to be revealed in the courtroom will materially prejudice the defendant on trial, because in no other constitutionally acceptable way can his rights be protected.

I, of course, do not ignore the existence of procedures such as change of venue, change of venire, continuance, waiver of jury, sequestration, some of which are discussed by the Supreme Court in Nebraska Press Assn. v Stuart (427 US 539, 563), as alternatives to prior restraint. But I cannot accept the concept that these possibilities, most of which involve denigration of defendant’s constitutional protections are acceptable alternatives (cf. Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 444, supra; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 380, affd 443 US 368, supra).

In my view the Bills of Rights set forth in article I of the New York State Constitution and the first 10 amendments to the United States Constitution become a mockery when, because of publicity, a court must say to a man on trial for his life or for his liberty, you are entitled to a speedy trial, but not yet. You are entitled to trial by a jury, unless you fear, that pretrial publicity has so adversely affected the impartiality of those who will be called as potential jurors that you dare not risk the result. You are entitled to a trial by a jury of your neighbors, but not those nearby. You are entitled to confront and cross-examine witnesses, but not those whose testimony is given through the newspapers. You are entitled to exclude improperly seized matter from the jury as evidence, but not as a news story. The more is this so when what we deal with is not prior restraint on publication as in Stuart, but denial of access for a limited time as to a limited part of the proceeding, and when we impose upon the defendant seeking closure not only the burden of showing that such procedures will not "dispel prejudice”, but also what impact the prejudicial information will have on the jury pool, in light of its size, the extent of the media coverage and the effect of that coverage on the public at large (see Matter of Westchester Rockland Newspapers v Leggett, supra, at p 447 [Cooke, Ch. J., concurring]). Bearing in mind that "none are more lowly— none more subject to potential abuse — and none with more at stake than those who have been indicted and face criminal prosecution in our courts” (ibid., at p 444 [Wachtler, J., majority opn]), I conclude that the required showing presses to the outer limits of, if it does not exceed, due process requirements for all but the wealthy defendant.

Delayed access does not affect the rights of the public or of the media in any similar way. As suggested in Gannett (43 NY2d, at p 381) and ordered in Westchester Rockland Newspapers (48 NY2d, at p 445), a full transcript of the plea proceeding in this matter was made and was furnished to appellant as soon as the danger to Du Bray’s interest was past. Perhaps consideration should be given to (1) equipping one courtroom in each courthouse with videotape equipment so that any closed portion of a trial or pretrial proceeding can be recorded in a way that will make available to the media with all the nuances of voice and gesture exactly what transpired while the courtroom was closed, (2) requiring that any closed proceeding be held in that courtroom and videotaped in its entirety, (3) putting the operation of the videotape equipment and the retention of the tapes in the hands of a public commission independent of the courts or other members of the criminal justice system and subject to court order only as to time of release, which would, in any event, be required to be not later than a few days after the trial of defendant or a codefendant ends (cf. Uniform Rules of Criminal Procedure, rule 714, 10 ULA 317). Though no objective evidence of which I am aware indicates the need for the procedure suggested, I recognize the importance of assuring our citizens that the judicial process is above suspicion, and believe any resulting inconvenience to the system to be more than offset if we thereby assure the constitutional rights of individuals accused.

Use of the suggested procedure together with the preliminary hearing mandated by the Gannett and Westchester Rockland Newspapers cases will preserve both the rights of the public (and the media in the interest of the public) to the free flow of information about the courts and the "most fundamental of all freedoms,” the right of an accused individual to a fair trial.

Chief Judge Cooke

(dissenting). A majority of the court today in effect sanctions the exclusion of the public and the press from a guilty plea proceeding in a criminal case. Because closure of a plea proceeding is tantamount to closure of a trial itself, and because the tacit implications of the court’s decision do not bode well for the future of public trials in this State, I must respectfully dissent.*

The present article 78 proceeding stems from a criminal proceeding in Albany County. In September of 1978, Alexander Marathon and William Du Bray were indicted for the crimes of robbery in the first degree, burglary in the first degree and grand larceny in the second degree. Although the case did attract media attention, the publicity does not appear to have been substantial. Nonetheless, when a joint suppression hearing was convened on March 5, 1979, defendants moved for exclusion of the public. The court granted the motion, without objection by the prosecutor, and without conducting a hearing, and ordered the doors to the courtroom locked.

During the course of the closed suppression hearing, defendant Marathon decided to enter a guilty plea. While the courtroom was still locked, and the public and reporters barred, Marathon’s counsel moved to close the courtroom during the plea proceeding. The District Attorney joined in the motion, and the Judge again ordered closure, stating only that "In the exercise of discretion and in the interests of justice, I will close the courtroom at this time to all non-Court personnel”. Later the court explained that it closed the plea proceeding because it was likely that Marathon would implicate Du Bray, rendering it difficult to select an impartial jury when Du Bray came to trial.

Petitioner Armstrong, a reporter for the Albany Times-Union, was aware of the closed suppression hearing, and allegedly made periodic checks of the courtroom where she believed the hearing was being conducted. She first learned of the closed plea proceeding from the attorney for Du Bray, who was excluded from the proceeding and was standing outside the courtroom.

Ms. Armstrong visited the Judge in his chambers, and he confirmed that a guilty plea had been entered. The Judge indicated that a transcript of the proceeding would be available in a few days, but denied Ms. Armstrong’s request to have the stenographer read the minutes to her. The next day, petitioners delivered a letter to the Judge protesting the closure and requested either an immediate transcript or an order directing the court reporter to relate the minutes of the proceeding. This request was denied.

On the following Monday, Du Bray entered a plea of guilty. Ms. Armstrong was then permitted to purchase a copy of the minutes taken at Marathon’s plea. Shortly thereafter, this proceeding was instituted.

At the outset, I cannot agree that the proceeding should be dismissed for mootness. As the court has but recently reaffirmed regarding closure orders, "we have traditionally retained jurisdiction, despite a claim of mootness, because of the importance of the question involved, the possibility of recurrence, and the fact that orders of this nature quickly expire and thus typically evade review” (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 436-437). By now rejecting this exception to the mootness doctrine, the majority has provided a precedent to effectively insulate closure orders from legal challenge. Indeed, since we have previously cautioned trial courts against staying the criminal proceeding while collateral review of a closure order proceeds (Matter of Merola v Bell, 47 NY2d 985, 987-988), the closure order will be moot and evade review in all but the rarest of instances.

No persuasive reason has been given for now overruling the mootness exception for closure orders so recently recited and recognized in Matter of Gannett Co. v De Pasquale (43 NY2d 370, affd 443 US 368) and Westchester Rockland Indeed, the majority furnishes no explanation whatsoever as to why the mootness exception applied in those cases falls short of reaching the situation in this matter, but notes somewhat cryptically that future cases may or may not be moot. Perhaps more unsettling is the absence of guidelines by which to evaluate mootness in these proceedings. If the court is unwilling to apply the mootness exception here, where a novel and not insubstantial issue is presented, it is difficult to predict when the exception will again be invoked. Such ad hoc, unexplained decision making is not in harmony with the best interests of our system of jurisprudence.

Nor do I agree that the "principles governing fair trial-free press issues * * * have already been largely declared by our decisions in Gannett” (majority opn, at p 716) and in Westchester Rockland Newspapers v Leggett (supra, at pp 439-442). Undoubtedly, Westchester Rockland and Gannett establish the procedural and substantive rules to be followed when dealing with a motion to close pretrial proceedings. Those guidelines do not cover the situation here, as a guilty plea proceeding is simply not pretrial in nature. Rather, it is a substitute for and the legal and practical equivalent of the trial itself. A plea of guilty establishes "guilt of the crime charged as incontrovertibly as a verdict of a jury upon a trial” (People ex rel. Carr v Martin, 286 NY 27; see, e.g., People v Krennen, 264 NY 108, 109; People ex rel. Hubert v Kaiser, 206 NY 46, 53). The plea is in itself a conviction (e.g., People v Jones, 44 NY2d 76, 82-83, citing Boykin v Alabama, 359 US 238). "Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence” (Kercheval v United States, 274 US 220, 223). Thus, by stating that Westchester Rockland and Gannett are controlling, the court is effectively holding that trials may be closed to the public on the same basis as pretrial proceedings.

And the court may not sidestep this significant issue by merely asserting that Westchester Rockland recognized a distinction between trial and pretrial proceedings, for the fact remains that Westchester Rockland articulated substantive standards for only pretrial proceedings. Today’s decision must be construed as indorsing the application of those same standards to trial closures, and thereby sustaining the constitutionality of excluding the public and press from a trial itself. The fallacy in this holding is demonstrated by the Supreme Court’s retention of jurisdiction — at least for the present — in a case where the trial was closed to the public (Richmond Newspapers v Virginia, 448 US —, 48 USLW 3241). That action signals a strong possibility that the closing of a trial presents a substantial Federal constitutional question, even after Gannett upheld pretrial closure. It is thus difficult to fathom the majority’s efforts to avoid a question with such momentous constitutional and societal impact.

This is especially disturbing because the rationale for excluding the public from pretrial proceedings does not justify closure of plea hearings. This court has a number of times reviewed the serious conflict which gave rise to the pretrial closure controversy. On the one hand, the public is possessed of a right to open judicial proceedings. Not only is this right deeply rooted in our history (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 445, supra [concurring opn]), but it is mandated by the clear long-standing command of the Legislature: "[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same” (Judiciary Law, § 4). At the same time, there are instances, however rare, where pretrial publicity may effectively destroy the accused’s right to a fair trial (see Sheppard v Maxwell, 384 US 333). The precise point at which the public right to know must give way to the defendant’s right to a fair trial has and will continue to spark lively debate (compare Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 443-444, with id., at pp 445-448, supra).

But we can all agree as to the possible source of the potential prejudice at pretrial suppression hearings. Because the very purpose of such proceedings is to determine the admissibility of evidence, they "are often a potent source for the revelation of evidence which is both highly prejudicial to the defendant’s case and not properly admissible at trial” (Matter of Westchester Rockland Newspapers v Leggett, supra, at p 439). If the hearing is open, and the case is well publicized, it is possible that the evidence will be disclosed to potential jurors but ultimately excluded from use at trial. This could subvert the very purpose of the hearing.

By contrast, none of these possible dangers attend when the plea proceeding is opened to public view. Given a defendant’s voluntary decision to admit his guilt in open court, and the fact that the plea proceeding will quickly ripen into a conviction, the possibility of a defendant’s rights being impaired by the presence of the public and the press is almost nonexistent. And, even if it be assumed that concern for a codefendant’s rights would ever warrant closure of a plea, the mere fact that the pleading defendant might implicate his cohort is insufficient justification. It is true, of course, that the defendant’s statements at the plea, if they implicate the codefendant, would be prejudicial. But all evidence which suggests guilt is highly prejudicial. This does not mean that all inculpatory evidence must be enjoined from pretrial disclosure. The narrow rationale for considering closure of the suppression hearing is that the damaging evidence may prove to be inadmissible at trial. There is no reason to suppose that the evidence uncovered at a plea hearing would be inadmissible at the later trial of a codefendant. Indeed, more often than not, the defendant who pleaded can probably be expected to testify at the codefendant’s trial — possibly for the prosecution, possibly for the defense. It follows that there is no ipso facto basis for overriding the command of section 4 of the Judiciary Law with respect to plea proceedings.

In addition to the absence of prejudice, the public has a compelling stake in open plea proceedings. "Publicity, not secrecy, in arraignment, plea and judgment is part of our tradition” (Matter of Rudd v Hazard, 266 NY 302, 307). Especially in modern times, when guilty pleas account for most criminal dispositions, it is particularly egregious to close the courtroom doors on these, proceedings. In some areas of the State, guilty pleas make up three fourths of all criminal dispositions (Twenty-Second Ann Report of NY Judicial Conference, 1977, p 56). And, in any calendar year, guilty pleas may constitute 90-95% of all convictions obtained State-wide (see id., at p 58). To exclude the public from plea proceedings of codefendants is thus to exclude the public from the workings of a substantial part of the criminal justice system.

The beneficial aspects of an open criminal justice system have been often enough discussed to need no repetition here (see, e.g., Gannett Co. v De Pasquale, 443 US 368, 407, 421-422, 427-433, supra [Blackmun, J., concurring and dissenting]; Friendly, Crime and Publicity; Note, The Right to Attend Criminal Hearings, 78 Col L Rev 1308). But it would not be amiss to note that if the plea is insulated from public view, the public may be deprived of their most effective method of determining whether elected officials are enforcing the law "with vigor and impartiality” (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 437, supra). And, casting a veil of secrecy over the major component of the criminal justice system may well lead our citizens to view the judicial process with a suspicious eye (see People v Hinton, 31 NY2d 71, 73, supra). It is not enough that justice be done. It must be perceived as being done in the eyes of the public.

Finally, it bears emphasis that the closure motion in the present case was entertained in secret, with no representative of the public or media afforded an opportunity to voice opposition. Moreover, the motion was granted in summary fashion without any showing in support of it. These procedures cannot be sanctioned (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 442, supra). The majority’s explanation —that closure occurred prior to the Westchester Rockland case — is unacceptable. Even prior to Westchester Rockland it was clear that closure could not be ordered absent some showing of potential prejudice (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 376-381, affd 443 US 368, supra). Here, there was none. And, it had also been stated in Gannett that "the courts should of course afford interested members of the news media an opportunity to be heard * * * to determine the magnitude of any genuine public interest” (43 NY2d, at p 381). Since the closure in this case occurred after the procedural guidelines in Gannett were promulgated, the majority’s explanation of the improprieties does not bear scrutiny. Thus, the procedural irregularities alone would warrant reversal.

Accordingly, the judgment of the Appellate Division should be reversed.

Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler; Judge Meyer concurs in a separate opinion; Chief Judge Cooke dissents and votes to reverse in another opinion.

Judgment reversed, without costs, and matter remitted to the Appellate Division, Third Department, with directions to dismiss the proceeding solely on the ground of mootness.

      . "[N]ovel and important question of statutory construction” (Le Drugstore Etat Unis v New York State Bd. of Pharmacy, 33 NY2d 298, 301); "of a character which is likely to recur not only with respect to the parties before the court but with respect to others as well” (East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129, 135); "only exceptional cases, where the urgency of establishing a rule of future conduct is imperative and manifest will justify a departure from our general practice” (Matter of Lyon Co. v Morris, 261 NY 497, 499); question of "importance and interest and because of the likeliness that they will recur” (Matter of Jones v Berman, 37 NY2d 42, 57); "question -of general interest and substantial public importance is likely to recur” (People ex rel. Guggenheim v Mucci, 32 NY2d 307, 310); question "of major importance and [that] will arise again and again” (Matter of Rosenbluth v Finkelstein, 300 NY 402, 404); questions of "general interest, substantial public importance and likely to arise with frequency” (Matter of Gold v Lomenzo, 29 NY2d 468, 476); "importance of the question involved, the possibility of recurrence, and the fact -that orders of this nature quickly expire and thus typically evade review” (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 437); "crystalizes a recurring and delicate issue of concrete significance” (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 376).

      . In Gannett we stated that in determining the propriety of closure in a particular case the court "should of course afford interested members of the news media an opportunity to be heard, not in the context of a full evidentiary hearing, but in a preliminary proceeding adequate to determine the magnitude of any genuine public interest” (43 NY2d 370, 381). That precatory language in Gannett was the foundation for the mandate of Leggett (supra, at p 442) which spelled out in as much detail as a common-law court may, the procedure to be followed by a trial court which is confronted with a request for closure of a criminal proceeding.

      . We also note that the appeal in Richmond Newspapers v Virginia (448 US —, 48 USLW 3241) is now pending before the Supreme Court.

      . (Cf. Cardozo, The Nature of the Judicial Process, p 25: "This work of modification is gradual. It goes on inch by inch. Its effects must be measured by decades and even centuries. Thus measured, they are seem to have behind them the power and pressure of the moving glacier.”)

      . Hearings preliminary in nature (e.g., suppression) are sometimes permitted during trial. For purposes of present discussion they should be classed as preliminary, but as indicated in the text the difference is not determinative. What is determinative is the effect on individual rights of what will be revealed.

      . For Mr. Justice Jackson that such an instruction could overcome the prejudice involved was a "naive assumption” which "all practicing lawyers know to be unmitigated fiction” (Krulewitch v United States, 336 US 440, 453 [concurring opn]; see, also, Bruton v United States, 391 US 123, 128-136; Jackson v Denno, 378 US 368, 388; Kalven & Zeisel, American Jury, p 128).

      . That effective news reporting is possible notwithstanding delay is clear from the New York Times’ handling of the Franzese case (United States v Franzese, 392 F2d 954, vacated in part and remanded sub nom. Giordano v United States, 394 US 310). In that case the Times honored the Trial Judge’s request and withheld until conclusion of the trial reporting on what occurred in the courtroom out of the presence of the jury. It then printed a roundup story concerning the trial, including the material earlier withheld (New York Times, March 4,1967, p 28, cols 4-8).

      . Sequestration is the exception, but it involves a potential of jury resentment at being locked up for the duration of the trial which makes it likewise unacceptable as an alternative (cf. Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 444, supra).

      . (Estes v Texas, 381 US 532, 540: "We have always held that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms— must be maintained at all costs.”)

      . It should never be forgotten that the concept of a public trial has its genesis in concern for protection of the accused (see People v Hinton, 31 NY2d 71; Gannett Co. v De Pasquale, 443 US 368, 406 [Blackmun, J., concurring and dissenting]).

      . As the majority correctly notes, the mootness exception recognized in Gannett and Leggett applies in instances where an important issue is capable of recurring while evading review (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 436-437, supra; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 376, supra; see Matter of Carr v New York State Bd. of Elections, 40 NY2d 556, 559; see, also, Matter of United Press Assns. v Valente, 308 NY 71, 76). Since Leggett presented an issue substantially similar to Gannett, the retention of jurisdiction in Leggett apparently represents a policy decision by the court to continue to apply the mootness exception in closure cases. Alternatively, the court may have viewed Leggett as presenting a novel question, even after Gannett. Under either rationale, the mootness exception applies here.

      . It is also difficult to understand how the majority can find this proceeding moot and yet effectively rule on the merits of the trial closure. By finding Westchester Rockland controlling, as discussed, the majority has held that a trial may constitutionally be closed, in instances not previously permitted.

      . The two are not the same but are separate and distinct and they do not mix or merge. A justifiable closure of the suppression hearing did not envelop the plea for by nature and law there was a cessation of the former before the initiation of the latter.

      . In People v Hinton (31 NY2d 71, supra), it was well stated at page 73: "Public trials, of necessity, serve a twofold purpose. They safeguard an accused’s right to be dealt with fairly and not to be unjustly condemned * * * and concomitantly serve to instill a sense of public trust in our judicial process by preventing the abuses of secret tribunals as exemplified by the Inquisition, Star Chamber and lettre de cachet * * *. Not only the defendant himself, but also the public at large has a vital stake in the concept of a public trial.”

      . Even more troubling is the possibility of closure of a plenary trial where one defendant is to be tried separately from and before his codefendant.


source: Caselaw Access Project

author: Chief Judge Cooke. Jones, J. Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Joy Adler, Appellant.
    Argued March 21, 1980;
    decided July 3, 1980

      POINTS OF COUNSEL

      David Edelman and Jerry V. Weinberg for appellant.
    I. A warrantless search requires legal justification. (Coolidge v New Hampshire, 403 US 443; Ex parte Jackson, 96 US 727; Jackson v Van Leeuwen, 397 US 249; Katz v United States, 389 US 347; United States v Chadwick, 433 US 1; People v Gleeson, 36 NY2d 462.) II. The warrantless search and seizure prior to arrest was in violation of appellant’s constitutional rights. (United States v Chadwick, 433 US 1; People v De Santis, 46 NY2d 82; United States v De Berry, 487 F2d 448; People v Erwin, 42 NY2d 1064; People v Darden, 34 NY2d 177; People v Perel, 34 NY2d 462; People v Weintraub, 35 NY2d 351; Preston v United States, 376 US 364; United States v Davis, 482 F2d 893.) III. The prosecution failed to meet its burden of proof. (McDonald v United States, 335 US 451; Schneckloth v Bustamonte, 412 US 218; Katz v United States, 389 US 347.) IV. The "inevitable discovery” doctrine does not apply in this proceeding. (Nardone v United States, 308 US 338; Smith v United States, 324 F2d 879; People v Soto, 55 Misc 2d 219; People v Regan, 30 AD2d 983; Silverthorne Lbr. Co. v United States, 251 US 385; People v Scharfstein, 52 Misc 2d 976; Wong Sun v United States, 371 US 471; Brown v Illinois, 422 US 590.) V. Appellant’s cross appeal regarding the search of appellant’s pocketbook was inextricably intertwined with the People’s appeal and should not have been dismissed. VI. The police conduct was based on improper tainted evidence and the arrest, search and seizure of appellant’s handbag violated her constitutional rights. (People v La Pene, 40 NY2d 210; People v Taggart, 20 NY2d 335; People v Bronk, 66 Misc 2d 932; Chambers v Maroney, 399 US 42, 408 F2d 1186; People v West, 44 NY2d 656; Aguilar v Texas, 378 US 108; People v Wirchansky, 41 NY2d 130; People v Hanlon, 36 NY2d 549; People v Castro, 29 NY2d 324.)

      John J. Santucci, District Attorney (Ivan K. Chesler and Charles N. Walsh of counsel), for respondent.
    I. The warrant-less seizure by the New York police of the parcel shipped from California was entirely proper. In any event, assuming, arguendo, that the initial reassertion of control over the parcel by the New York authorities was improper, the contraband contained therein was properly recovered as part of a search incident to a lawful arrest. (United States v De Berry, 487 F2d 448; United States v Ford, 525 F2d 1308; United States v Edwards, 443 F Supp 192; United States v Hillan, 381 F Supp 1171; Burdeau v McDowell, 256 US 465; United States v Pryba, 502 F2d 391, 419 US 1127; People v Horman, 22 NY2d 378; Sackler v Sackler, 15 NY2d 40; People v Esposito, 37 NY2d 156; Corngold v United States, 367 F2d 1.) II. The court o below did not err as a matter of law in dismissing appellant’s so-called cross appeal.
   OPINION OF THE COURT

Chief Judge Cooke.

The warrantless police search and seizure of a parcel at its Kennedy Airport destination, when viewed in conjunction with a prior valid search and seizure accomplished at an airline terminal in Los Angeles and the continuity of police control throughout, was not constitutionally offensive.

Defendant was arrested at Kennedy after she retrieved a package shipped by air to her from California. The package was seized, her handbag was searched and narcotics were found in both. There followed an indictment for two counts of criminal possession of a controlled substance in the third degree, two for such possession in the seventh degree and one for unlawful possession of marihuana.

Based on allegedly improper police activity prior to her arrest, defendant sought to suppress the physical evidence found in her possession. She was successful at Criminal Term as to the bundle’s contents, but the Appellate Division modified so as to deny suppression in the entirety. There should be an affirmance.

At the suppression hearing, the events leading to defendant’s arrest were related by Officer David McCarthy of the Queens Narcotics Bureau. A report of the Los Angeles Police Department, dated October 21, 1977, describing the events in California was also received. Without objection, McCarthy testified that on October 21 a message was received from an agent of the Federal Drug Enforcement Administration notifying the Queens bureau of the shipment to New York of a quantity of narcotics from Los Angeles addressed to "J. Adler” on United Airlines flight No. 8 scheduled to arrive that evening. Following receipt of this message, a member of the Queens bureau contacted Los Angeles Police Officer Lott, the source of the Drug Enforcement Administration report, to obtain additional information about the shipment. Lott described the package in detail and recounted how the contraband was discovered. A United Airlines employee in Los Angeles, one Orr, informed Lott that an individual had delivered the package for shipment, stating that it contained a vase. The individual appeared nervous and Orr, becoming suspicious, X-rayed the package. Suspecting hazardous material, Orr opened the package and discovered a large quantity of pills. So apprised, Officer Lott proceeded to the Los Angeles airport and took custody of the package. Laboratory analysis disclosed the presence of amphetamines and barbituates. Lott thereafter inscribed his initials, a number and the date on the inside of the package and returned it to the carrier for shipment to New York.

McCarthy and two fellow officers were present at Kennedy when United flight No. 8 touched down at 8:45 p.m. No inquiries concerning the package were made by 11?30 that evening. McCarthy then opened the item and discovered a quantity of pills, which he recognized as amphetamines and barbituates, as well as the markings placed by Officer Lott. McCarthy delivered the container to the police precinct and had the drugs analyzed. United’s personnel were instructed to inform anyone making inquiries about the package that it had been lost in transit and was being traced. Following several inquiries, the consignee was told that the package could be picked up in the afternoon of October 24. That afternoon, defendant appeared at the airport to claim the package and, upon signing for the package and taking possession of it, she was arrested and searched. Found in defendant’s pocketbook were a capsule, a pill and a small quantity of marihuana.

Crediting the People’s evidence, Criminal Term concluded that the New York police had probable cause to arrest defendant and seize the package and that the initial search of it in Los Angeles was proper. However, the subsequent search in New York without a warrant, two days prior to defendant’s arrest, was held improper. Determining that probable cause to arrest existed independent of the tainted search and that the search of defendant’s pocketbook was valid as incident to a lawful arrest, Criminal Term suppressed only the evidence found in the package.

On appeal by the People pursuant to CPL 450.20 (subd 8) and 450.50, the Appellate Division agreed that the inspection of the package by the airline agent and the Los Angeles officer was proper. The court ruled in addition that the subsequent action of the New York police was also permissible on the theory that the New York events were simply a continuation of the lawful seizure in Los Angeles and, consequently, the motion to suppress the contents of the package was denied.

Considered as a search discrete from that in Los Angeles, the New York police action was violative of the Fourth Amendment proscription against warrantless searches. Certainly, defendant had a legitimate privacy interest in the contents of the package addressed to her (see United States v Van Leeuwen, 397 US 249). Armed with ample information to support a probable cause determination, the police undoubtedly could have obtained a warrant. At least the initial search, effected two days prior to defendant’s arrest, cannot be justified as an incident thereto (see Coolidge v New Hampshire, 403 US 443, 457; compare People v De Santis, 46 NY2d 82; United States v Garcia, 605 F2d 349). Nor is there justification in the People’s claim of exigency based on the arrival of the flight and the desire to avoid alerting the recipient. Even if such a claim were valid, the argument loses force when viewed in light of the apparent lack of concern for delay, as evidenced by the instruction simply to inform persons inquiring of the package that it had been lost and was being traced. However, assuming that the seizure of the package could be justified by some exigency existing in New York, the warrant-less search of the package following the seizure was improper. At that point, no demanding circumstances existed to justify an immediate search, for the property then was within the control of the police. And, where exigency is employed to justify a seizure but the threat of harm or of destruction of evidence has been neutralized by police dominion over the property, the Fourth Amendment mandates the intervention of a detached Magistrate and the issuance of a warrant before there occurs a further intrusion on an individual’s privacy interests (Arkansas v Sanders, 442 US 753; United States v Chadwick, 433 US 1).

While the New York warrantless search, standing alone, cannot be supported, that search must be viewed in connection with the antecedent search and seizure in Los Angeles, which, as both courts below found, was properly effected. It is well settled that a search by a private person, even an unlawful search, does not implicate Fourth Amendment considerations (People v Gleeson, 36 NY2d 462, 465; People v Horman, 22 NY2d 378, 381-382; Burdeau v McDowell, 256 US 465, 475). True, private conduct may be so imbued with governmental involvement that it loses its character as such and calls into play the full panoply of Fourth Amendment protections (see People v Esposito, 37 NY2d 156, 160; Corngold v United States, 367 F2d 1), but here there was no governmental involvement until after the private search revealed the presence of contraband. The agent’s action, taken not in furtherance of some objective of the government but on behalf of the airline, was private conduct not subject to Fourth Amendment challenge (see People v De Santis, 46 NY2d 82, supra; United States v Pryba, 502 F2d 391, 398, cert den 419 US 1127).* *

Nor did the airline employee become an agent of the police merely by surrendering the package to Officer Lott. A citizen who discovers contraband in his private capacity does not become a police agent simply by relinquishing the suspected contraband to the authorities. Here, the existence of illicit drugs had been discovered in the course of a private search; any invasion of defendant’s privacy interests was complete at that point. No new or different search was effected by the immediate surrender to and inspection by the police officer (see United States v McDaniel, 574 F2d 1224, cert den 441 US 952; United States v Blanton, 479 F2d 327). Indeed, the Fourth Amendment simply was not implicated by the voluntary transfer of the package to the police, for no governmental seizure in the constitutional sense exists in such a situation (see United States v Sherwin, 539 F2d 1, cert den 437 US 909). The police did not go beyond the private search when they examined the contents of the package (cf. Walter v United States, 447 US —, 48 USLW 4807 [Stevens and Stewart, JJ.]). It is thus immaterial whether the airline agent knew or reasonably suspected the illicit nature of the package’s contents, or whether the package remained open when the police arrived in response to the agent’s call (see United States v Blanton, 479 F2d 327, 327-328, supra [airline employees suspected but were not sure that the object found in an attaché case was a silencer for a firearm]). This case does not involve a closed container in the constitutional sense, for the container in which the drugs were found had been opened and examined by the airline agent. The police intruded upon no privacy interest not already invaded by the private party and thus lawfully seized the evidence proffered.

Regarding the New York police conduct as a continuation of the episode in California, there is no infirmity. When the Los Angeles police took custody of the property, the package legitimately was withdrawn from the stream of transit from the sender to the addressee and was lawfully under the control of the Los Angeles Police Department. Although that department thereafter sent the package on to New York, in no sense was the property returned to the original stream of transit. Rather, described in detail and marked by the Los Angeles inspector, it continued on to New York effectively under the dominion of the authorities. That the identity of the authority exerting control changed upon arrival of the parcel does not signify a break in the police chain of dominion. There can be no meaningful distinction between the events as they occurred and a situation where a police officer accompanies the package, physically transfers the property to another officer who examines it and thereafter sees it delivered to the intended recipient. Nor does the relinquishment of physical possession to United Airlines for the flight to New York serve to break the chain, for the police exerted control over the package both before and after the flight with no other intervening events. Thus, when the New York police searched the package, there was no independent intrusion requiring a warrant, but simply a continuation of the valid search and seizure effected in Los Angeles (see United States v De Berry, 487 F2d 448; United States v Ford, 525 F2d 1308; McConnell v State, 595 P2d 147 [Alaska], cert den sub nom. McConnell v Alaska, 444 US 918; State v Pohle, 166 NJ Super 504, cert den 81 NJ 328).

Of course, not all searches of this nature can be so justified. The control exerted by the police after an initial search must remain effectively unbroken. If by a break the property returns to the original stream of transit, the police may not search or seize the property in the absence of independent justification cognizable under the Fourth Amendment (see United States v Edwards, 602 F2d 458, 467, n 9). The property here, however, once lawfully seized and under continuous police control, simply was permitted to come into the suspect’s hands as bait in a trap set not by the police but apparently by the suspect herself. Under the circumstances presented, there was no constitutional infirmity.

Accordingly, the order of the Appellate Division should be affirmed.

Jones, J.

(concurring). I agree that there should be an affirmance of defendant’s conviction and for the reasons stated by the majority, except that I do not concur in its treatment of the recent decision of the United States Supreme Court in Walter v United States (447 US —, 48 USLW 4807).

I cannot subscribe to the implication in the majority opinion (pp 737-738, n 4, and associated text) apparently distinguishing Walter on the ground that there is an analytical difference, for purposes of application of the constitutional provisions prescribing the right of the people to be secure against unreasonable searches, between a verification of the contents of the labeled boxes of film in that case by projection of the films and a verification of the contents of the pills in this case by chemical testing. If the position stated in the opinions of Mr. Justice Stevens and Mr. Justice Stewart were taken to be a statement of the present law, I would conclude that there should be a reversal in this case.

With members of the Supreme Court divided as they were in Walter, however, both as to result and as to predicate rationale, I do not know whether Walter should be deemed to control our disposition in this case. Accordingly, with greatest respect, for that reason I am constrained to conclude that we should determine that the decision in Walter does not govern this appeal.

Meyer, J.

(dissenting in part). Respectfully I dissent from so much of the Appellate Division’s order as modified Criminal Term’s suppression of the contents of the package. The majority concedes, and I agree, that considered separately from the Los Angeles seizure, the action of the New York police constituted an unlawful search. I agree also that a search by a private person is not within the constraints of the Fourth Amendment, so long as that person acts in his own interest and not as an agent or in the interest of the government, and that the fact that an airline tariff provision permits an airline employee to open a package shipped air freight is not, by itself, sufficient to constitute government involvement in the opening of a package by an airline employee (see, generally, Ringel, Searches and Seizures, Arrests and Confessions [2d ed], §§ 2.3, 16.2; Admissibility, in Criminal Case, of Evidence Obtained By Search By Private Individual, Ann., 36 ALR3d [supp, § 6.5]). Moreover, I concede that there is nothing evil per se in co-operation between an airline aware that it has possession of contraband and the police of the area in which the discovery is made or between law enforcement personnel (State or Federal) of that area and their counterparts in the area of destination. Contraband validly seized at the point of shipment does not lose its police custody status because it is returned to the airline for transportation or until such time as it leaves police-airline custody (as, for example, by delivery to the recipient, United States v Edwards, 602 F2d 458). Absent such a break in custody, therefore, arrest of the recipient at the point of destination when he seeks to take possession of the package, suitcase, footlocker or similar container in which the contraband was shipped will generally be proper and "seizure” of the contraband at that point, because it is but the continuation of the earlier valid seizure, need not be otherwise justified.

Having said all of that I nevertheless cannot accept the conclusion of the majority that the evidence here presented demonstrates the validity of the Los Angeles search or permits the inferences (necessary to the result it reaches) that the majority draws. I am troubled also, apart from the insufficiency of the evidence, by its evident unreliability.

Warrantless searches or seizures are, as we held in People v Hodge (44 NY2d 553, 557), presumptively unreasonable per se and it is the People who have the burden of overcoming that presumption (id.; Coolidge v New Hampshire, 403 US 443, 455; People v Wise, 46 NY2d 321, 329; cf. People v Di Stefano, 38 NY2d 640, 652). It was, therefore, the People’s burden to show that the Los Angeles handling of the parcel, upon which the majority relies, was proper (see United States v Ford, 525 F2d 1308, 1313). The majority’s holding that the warrantless Los Angeles seizure was constitutionally proper rests upon its legal conclusion that there was "no governmental seizure in the constitutional sense” in the handling of the package by the Los Angeles police after receipt of it from airlines agent Orr (p 737), and its inferences that "the private search revealed the presence of contraband” (p 737) and that the airlines agent’s action was not taken in furtherance of some governmental objective (p 737). The legal conclusion is irrelevant because it is the propriety of the search not whether there was a seizure that governs. Nor are the majority’s factual inferences warranted.

The legal conclusion must be viewed in light of the Supreme Court’s June 20, 1980 decision in Walter v United States (447 US —, 48 USLW 4807). There a package of obscene film was misdelivered by the carrier to a company with a name similar to that of the consignee. Having opened the cartons and believing from the labels and suggestive drawings on the individual boxes of film contained in them that they contained obscene film, but being unable because of the size of the film to determine the actual content of the film without a projector, the recipient called an FBI agent, who picked them up and, thereafter, without obtaining a warrant, viewed the films with a projector.

Defendant’s motion to suppress was denied and the Fifth Circuit Court of Appeals by a divided court affirmed. The Supreme Court reversed, the majority concluding that there was in the FBI’s viewing of the film "an unreasonable invasion of their owner’s constitutionally protected interest in privacy” (447 US —, —, —, 48 USLW 4807, 4808, 4811, supra). The court split 5 to 4, with Mr. Justice Marshall concurring in the judgment without stating his reason for so doing, Justices Stevens and Stewart joining in an opinion holding that, assuming there was no seizure there was nevertheless an improper search, and Justices White and Brennan taking the view that even if the recipient had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them. The Stevens opinion pointed out that an officer’s authority to possess a package is distinct from his authority to examine its contents, that the Government may not exceed the scope of the private search unless it has the right to make an independent search, and that the opening of the cartons by a third party "does not alter the consignor’s legitimate expectation of privacy. The private search merely frustrated that expectation in part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.” It concluded that "[sjince the additional search conducted by the FBI — the screening of the films — was not supported by any justification, it violated that Amendment” (447 US, at p —, 48 USLW, at p 4810). The White opinion agreed that the warrantless projection of the films constituted a search despite the fact that the Government had acquired the films from a private party, stating flatly that "The notion that private searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles” (id.).

While there were prior to the Walter decision cases holding it immaterial whether a package was open or closed when the private searcher turned it over to the police officer (People v McKinnon, 7 Cal 3d 899, 915-916; United States v Pryba, 502 F2d 391, 401; United States v Blanton, 479 F2d 327, 328-329), the authority of those cases is now seriously in question. Moreover, there were as many if not more cases holding or implying that the circumstances attending the officer’s possession of the property bear materially on the constitutionality of his search of it, including several on which the majority rely. Thus, McConnell v State (595 P2d 147 [Alaska], cert den sub nom. McConnell v Alaska, 444 US 918) held no more than that "law enforcement officials must come into lawful possession of the contraband. Seizure of contraband after it is observed in plain view is one method of acquiring lawful possession” (595 P2d, at p 154; emphasis supplied).* ** The decision in State v Pohle (166 NJ Super 504, cert den 81 NJ 328) may be read as indicating that the contents were removed from the package before both were turned over to the police (see NJ Super, at pp 507, 513) and possibly that the airline employee was able to identify (cf. 166 NJ Super, at p 513) the contraband (described simply as "about 500 tablets, and a bundle of bills totaling $5,000”, see 166 NJ Super, at p 507) before turning it over to the police. In United States v Ford (525 F2d 1308, 1312, supra) the court noted that it was "the duty of the officers to further investigate the open box * * * to determine whether the suspicious substance in plain view was in fact contraband.” Thus, whether viewed in light of the Walter holding or the prior case law on which the majority rely, the warrantless search by the Los Angeles police was improper, unless airlines agent Orr in fact identified what the pills were, or there was an exigency justifying search without a warrant.

There is nothing to show that Orr had any basis for concluding that the pills he found were not wholly innocuous. The majority’s finding that "the private search revealed the presence of contraband” is a quantum leap from the evidence presented by New York Police Officer McCarthy, the only witness presented. He testified that he identified the pills as amphetamines and barbituates from the markings of the capsules and his knowledge of the Physician’s Desk Reference concerning the meaning of those markings, but as to the Los Angeles events he could only testify that Los Angeles Detective Lott told him that airline employee Orr "suspected narcotics” when he opened the package and found pills. What an airline employee observes cannot be equated with the observations of a police detective who has become an expert through long work in the narcotics field. To say that the airline employee’s observations "revealed the presence of contraband” is, therefore, to allow a warrantless seizure on nothing more than the airline employee’s suspicion (see United States v Haes, 551 F2d 767, 771; cf. United States v Rodriguez, 596 F2d 169, 174; but see People v De Santis, 46 NY2d 82, 86). Yet if one thing is clear in Fourth Amendment law it is that the major purpose of the amendment was to forestall search or seizure based solely on rumor or suspicion.

Nor can Los Angeles Officer Lott’s search be justified on the theory of exigent circumstances. The People argue that the package had been turned over to the airline for shipment on a particular flight. There is, however, nothing in the record to establish that the shipper instructed or requested that a particular flight be used. The Los Angeles police report in evidence shows only that at 9:20 a.m. a man "brought a pkg. to the United Airline ticket counter to be sent to Little Neck, N.Y.” and that it was, in fact, "sent on United flight #8 to JFK Airport LAX (1200 hours), arrival at JFK (2015 hours).” The People also contend, based on United States v Ford (525 F2d 1308, supra), that exigency can be found in the possibility that failure to ship the contraband promptly may have alerted the New York consignee (defendant) and thus frustrated the investigation and arrest process. The contention overlooks the airline tariff provision (referred to in People v McGrew, 1 Cal 3d 404, 410, cert den 398 US 909; and People v McKinnon, 7 Cal 3d 899, 906, cert den 411 US 931, supra) permitting shipment on a "space available” basis, a possibility which it is essential for the People to negate in the first instance if the presumption against validity of a warrantless seizure is to retain any meaning.

The majority disposes of any agency issue by stating (p 737) that the airline employee’s action was "taken not in furtherance of some objective of the government but on behalf of the airline”. While there is nothing in the record to show that United Airlines employee Orr had been previously known to Los Angeles Police Investigator Lott, there also is nothing to show that he had not acted in many prior instances in the same capacity or that he was not acting in this particular instance at Lott’s request. To overcome the presumption the People had to show not only that Orr could have (or even did) have an airline motive for opening the package, but also that he was not acting at the instigation or behest of the Los Angeles police, whether as to the instant case or as a matter of general arrangement between them. The issue is, however, nowhere touched upon in the exhibits or in the direct testimony. The only reference to agency was defendant’s attorney’s rather poignant question on cross-examination to McCarthy: "Did anyone inquire as to whether or not Mr. Orr had been requested by the law enforcement agencies in Los Angeles to look for such packages or to disclose to them that he had suspicious packages?” To that question McCarthy responded only "I don’t know.”

That response vividly illustrates the all but impossible burden on the defendant when the presumption of invalidity of a warrantless search is permitted to be overcome by evidence of the type here offered. Defendant’s memorandum after the suppression hearing protested the type of information supplied to the New York police by the Los Angeles police. Notwithstanding the fact that CPL 710.60 (subd 4) makes hearsay "admissible to establish any material fact” in a suppression hearing, we have had occasion to comment on the necessity of the People producing a particular officer as a witness because of the danger of relying upon a "tenuously balanced * * * pyramid of hearsay” (People v Havelka, 45 NY2d 636, 641). Here, as noted, the sole witness at the suppression hearing was New York Police Officer McCarthy. He testified that the Queens Narcotics area office received a telephone message from Drug Enforcement Agency Officer Perori at Kennedy Airport that Investigator Lott of the Los Angeles police had alerted Perori to the parcel and that another officer of Queens Narcotics, probably Detective Rabacki, then telephoned Lott, who told that officer what airline employee Orr had said and done. Thus, McCarthy’s testimony about Orr’s acts is at least fourth-hand hearsay. Had Orr or Lott been produced as suppression hearing witnesses, the gaps in the evidence would not have existed.

Whether, notwithstanding the admissibility of hearsay at suppression hearings, fourth-hand hearsay is so unreliable that its use presents a due process problem it is not necessary now to decide. Clearly, the People have not come forward with proof sufficient to overcome the presumption. When to that fact is added the essential unreliability of the evidence they have produced, I have no hesitancy in applying the exclusionary rule to suppress the contraband.

For the foregoing reasons, I would hold both the New York seizure and the Los Angeles search in violation of defendant’s constitutional rights and would, therefore, modify the order of the Appellate Division and reinstate the order suppressing the contents of the package (People v Havelka, 45 NY2d 636, 643-644, supra).

Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Chief Judge Cooke; Judge Jones concurs in a separate opinion; Judge Meyer dissents in part and votes to modify in an opinion.

Order affirmed.

      .  The Appellate Division dismissed defendant’s cross appeal concerning the denial of the motion to suppress the evidence found in her handbag on the ground that no statutory authority supported such an appeal. There was no error in this respect (see CPL 450.10, 450.15; compare CPL 450.20, subd 8).

      . We note the dissent’s dissatisfaction with the hearing procedure in this case. At no time, however, has defendant urged that her due process rights were violated by the use of hearsay. Indeed, there was no objection to the presentation of proof and no request either for the production of the airline agent or Officer Lott or for an adjournment to contact these witnesses. Thus, we need not pass upon the procedural questions suggested by the dissent.

      . The dissent disputes the validity of the finding that the agent acted in the interest of the airline rather than the authorities. However, that finding, affirmed by the Appellate Division, is supported by the record and should not now be disturbed. Particularly in the absence of some basis for believing that the agent acted at the behest of the police, the People were not required to negate further the possibility of a police motive.

      . That the drugs were subjected to laboratory analysis does not alter the nature of the seizure. The drugs, the nature of which was reasonably self-evident, were already lawfully in the possession of the police. Unless we are prepared to hold that there is a reasonable and justifiable expectation of privacy in the contents of a pill capsule, it cannot be said that an intrusion into privacy interests was effected by scientifically examining the drugs. Indeed, to read Walter to require a warrant at this point would result in a mandate that the police obtain a warrant whenever legally seized drugs are to be subjected to analysis. We do not read Walter, involving as it did First Amendment considerations and a general exploratory viewing of films contained within separate sealed boxes, as compelling that result.

      . The majority’s footnote 3 turns the presumption referred to in the cited cases on its head.

      . The majority distinguishes the Walter case (at pp 737-738), claiming that it involved, First Amendment considerations and that in the present case the police did not go beyond the private search. But the First Amendment was mentioned only to emphasize the importance of scrupulous observation of the general Fourth Amendment principle that "an officer’s authority to possess a package is distinct from his authority to examine its contents” (447 US, at p —, 48 USLW, at p 4809). The second distinction is no clearer. It is difficult to see a factual distinction between the screening of film as to the contents of which the private party suspected obscenity because of the labels and drawings and such visual inspection of the film as he could make and the chemical analysis by the police of pills which the private party suspected were narcotics. If the screening was an intrusion on privacy interest so was the analysis of defendant’s pills.

      . In any event they can be distinguished on their facts: McKinnon, because the officer could see the shape of the marihuana brick and smell its odor (7 Cal 3d, at p 917); Pryba, because the record showed the box remained open (502 F2d, at p 401, n 66); Blanton, because the decision recites, though it attaches no apparent significance to the fact that, defendant arrived before the Federal officer, called his lawyer after being told the bag was being held for arrival of the Federal officer and was told to cooperate (479 F2d, at p 328).

      . The majority does not rely on a plain view theory, but since United States v De Berry (487 F2d 448), on which it does rely, does (id., at p 451), I note that "plain view alone is never enough to justify the warrantless seizure of evidence” (Coolidge v New Hampshire, 403 US 443, 468, supra [emphasis in original]; People v Jackson, 41 NY2d 146, 150; cf. Walter v United States, 447 US —, —, 48 USLW 4807, 4809, supra).

      . That the airline employee at the point of shipment is often dangerously close to acting as a government agent is suggested by McConnell v State (595 P2d 147, affd sub nom. McConnell v Alaska, 444 US 918, supra) and Snyder v State (585 P2d 229 [both Alaska]) and People v McKinnon (7 Cal 3d 899, cert den 411 US 931, supra, the first two of which involved an airline employee who in two years uncovered drugs in 30 air shipments and testified that he opened 90 to 100 parcels per month, and the third of which concerned an employee who on four or five occasions in three years had opened packages and found marihuana and followed the practice of leaving the parcel open "so that when the police arrive 'there is no cause for illegal search or seizure.’ ” (7 Cal 3d, at p 904.) That in all three cases the finding on the particular facts was of nonagency does not mean that agency can never be spelled out as a matter of fact (cf. 1 La Fave, Search and Seizure, § 1.6).