author: Graffeo, J. Chief Judge Lippman (dissenting in part).

text:
    [989 NE2d 9, 966 NYS2d 747]
    The People of the State of New York, Respondent, v Alex Echevarria, Appellant. The People of the State of New York, Respondent, v Andrew Moss, Appellant. The People of the State of New York, Respondent, v Martin Johnson, Appellant.
    Argued March 18, 2013;
    decided April 30, 2013

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City, for appellant in the first above-entitled action.
    I. The trial court deprived appellant of his constitutional right to a public trial when it closed the courtroom without considering reasonable alternatives. (People v Clemons, 78 NY2d 48; People v Jones, 47 NY2d 409; People v Hinton, 31 NY2d 71; Waller v Georgia, 467 US 39; People v Kin Kan, 78 NY2d 54; People v Martinez, 82 NY2d 436; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501; People v Martin, 16 NY3d 607; People v Ramos, 90 NY2d 490; People v Nazario, 4 NY3d 70.) II. The court’s unbalanced agency charge, which both omitted factors favorable to the defense and directed the jury to reject agency based on other factors, foreclosed the jury’s consideration of appellant’s sole defense and denied him due process. (People v Lam Lek Chong, 45 NY2d 64; People v Roche, 45 NY2d 78; People v Argibay, 45 NY2d 45; People v Job, 87 NY2d 956; People v Pratt, 39 AD3d 315; People v Brown, 52 AD3d 204; People v Rose, 58 AD3d 544; People v Sanders, 63 AD3d 519.)

      Cyrus R. Vance, Jr., District Attorney, New York City (David E.A. Crowley and Patrick J. Hynes of counsel), for respondent in the first above-entitled action.
    I. The court lawfully restricted public entry into the courtroom during the testimony of the undercover officers. (People v Kelly, 5 NY3d 116; People v Ramos, 90 NY2d 490; People v Goode, 87 NY2d 1045; People v Luperon, 85 NY2d 71; People v Nieves, 90 NY2d 426; Batson v Kentucky, 476 US 79; People v Smocum, 99 NY2d 418; People v Payne, 88 NY2d 172; People v James, 99 NY2d 264; People v Richardson, 100 NY2d 847.) II. The court properly instructed the jury on the law of agency. (People v Hoke, 62 NY2d 1022; People v Argibay, 45 NY2d 45; People v Starling, 85 NY2d 509; People v Herring, 83 NY2d 780; People v Lam Lek Chong, 45 NY2d 64; People v Roche, 45 NY2d 78; People v Ortiz, 76 NY2d 446; People v Andujas, 79 NY2d 113; People v Feldman, 50 NY2d 500; People v Samuels, 99 NY2d 20.)

      Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Justin M. Ross, Peter L. Simmons and Jennifer L. Colyer of counsel), and Richard M. Greenberg, Office of the Appellate Defender (Joseph M. Nursey of counsel), for appellant in the second above-entitled action.
    The trial court erred by closing the courtroom to the general public during the trial testimony of the undercover officers. (Waller v Georgia, 467 US 39; People

      v Martinez, 82 NY2d 436; People v Kin Kan, 78 NY2d 54; People v Jones, 47 NY2d 409; People v Hinton, 31 NY2d 71; People v Ramos, 90 NY2d 490; People v Pearson, 82 NY2d 436; People v Martin, 16 NY3d 607; People v Vargas, 244 AD2d 367; People v Nazario, 4 NY3d 70.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Christopher P. Marinetti and Patrick J. Hynes of counsel), for respondent in the second above-entitled action.
    The trial court’s closure of the courtroom to the general public during the testimony of undercover detectives was entirely proper. (In re Oliver, 333 US 257; People v Jones, 47 NY2d 409; United States v Gupta, 650 F3d 863; Peterson v Williams, 85 F3d 39; Waller v Georgia, 467 US 39; People v Joseph, 59 NY2d 496; People v Martinez, 82 NY2d 436; Carson v Fischer, 421 F3d 83; People v Kin Kan, 78 NY2d 54; People v Ramos, 90 NY2d 490.)

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Lauren Stephens-Davidowitz of counsel), for appellant in the third above-entitled action.
    I. Martin Johnson’s right to a public trial was violated when the trial court closed the courtroom during the undercover officers’ testimony. (People v Ramos, 90 NY2d 490; People v Jones, 47 NY2d 409; People v Hinton, 31 NY2d 71; Waller v Georgia, 467 US 39; People v Martin, 16 NY3d 607; People v Martinez, 82 NY2d 436; People v Tolentino, 90 NY2d 867; Ayala v Speckard, 131 F3d 62; People v Harris, 93 AD3d 612; People v Crayton, 80 AD3d 478.) II. The court’s failure to deliver the “no prior sale convictions” element of the criminal jury instructions on agency was erroneous. (People v Watson, 20 NY3d 182; People v Andujas, 79 NY2d 113; People v Lam Lek Chong, 45 NY2d 64; People v Ortiz, 76 NY2d 446; People v Roche, 45 NY2d 78; People v Grant, 17 NY3d 613; People v Levy, 15 NY3d 510; People v Aleman, 12 NY3d 806; People v Antwine, 8 NY3d 671; People v Wesley, 73 NY2d 351.)

      Cyrus R. Vance, Jr., District Attorney, New York City (David P. Stromes and Patrick J. Hynes of counsel), for respondent in the third above-entitled action.
    I. Defendant’s Hinton claim is largely unpreserved and wholly meritless. (Waller v Georgia, 467 US 39; People v Robinson, 36 NY2d 224; People v Michael, 48 NY2d 1; People v Udzinski, 146 AD2d 245; People v Luperon, 85 NY2d 71; People v De Jesus, 69 NY2d 855; People v Ahmed, 66 NY2d 307; People v Alvarez, 20 NY3d 75; People v Nieves, 90 NY2d 426; People v Garcia, 95 NY2d 946.) II. The judge properly declined to charge the jury that, in assessing the agency defense, it could consider whether defendant had previously sold drugs, because the jury had heard no evidence on that score, and permitting it to consider a factor not in evidence would have amounted to an instruction countenancing speculation. (People v Kello, 96 NY2d 740; People v Starling, 85 NY2d 509; People v Feldman, 50 NY2d 500; People v Roche, 45 NY2d 78; People v Watson, 20 NY3d 182; People v Argibay, 45 NY2d 45; People v Ashwal, 39 NY2d 105; Sheppard v Maxwell, 384 US 333; People v De Jesus, 42 NY2d 519; People v Arnold, 96 NY2d 358.)
   OPINION OF THE COURT

Graffeo, J.

The primary issue in each of these buy-and-bust cases is whether the trial court properly closed the courtroom to the general public during the testimony of undercover officers. We conclude that the limited closures comported with Sixth Amendment public trial principles, but a new trial is required in one case based on an erroneous jury charge on the agency defense.

I.

Echevarria

Defendant Alex Echevarria was charged with criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds for selling three bags of crack cocaine to undercover officer number 0076 while undercover officer number 0064 (the “ghost”) observed from a distance. The buy occurred on St. Nicholas Avenue near West 155th Street in northern Manhattan. The court held a pretrial hearing pursuant to People v Hinton (31 NY2d 71 [1972]) to determine whether public access should be restricted during the testimony of the two undercover officers on the ground that closure was necessary to protect their safety.

At the hearing, officer number 0076 testified that he remained active in the area of St. Nicholas Avenue, returning to the vicinity 15 to 20 times since defendant’s arrest. He had a number of pending cases and “lost subjects”—sellers who had evaded apprehension—from St. Nicholas Avenue, and the officer expected to return there “[a]ny time soon.” He took precautions to conceal his identity during his frequent courthouse visits and had been threatened by a suspect on one occasion. Officer number 0064 gave similar testimony regarding his undercover activities around St. Nicholas Avenue and West 155th Street. He too had been threatened, once with a knife, and a suspect had hit him in the head with a hard object a few weeks before the Hinton hearing.

Over defendant’s objection, the court concluded that the courtroom should be closed to the general public during the testimony of both officers. The court reasoned that the officers had made a particularized showing that open court testimony would jeopardize their safety and ongoing investigations. The court noted that it would separately consider opening the proceedings to defendant’s family members should they wish to attend.

At trial, officer number 0076 testified that defendant offered to take the officer’s $40 to a nearby building to obtain crack cocaine. When the officer was hesitant about parting with his money, defendant gave him his wallet to hold as collateral. Defendant returned a short time later and handed the officer three bags of crack cocaine. Officer number 0064 observed the transaction. Two arresting officers testified that, shortly after the sale, they searched defendant and found a bag of crack cocaine in his pocket. A criminalist stated that laboratory testing established that the three packets defendant handed to the officer contained narcotics and an expert witness for the People described the nature of typical street narcotics transactions. Defendant took the stand and testified that he was a drug addict who agreed to procure the drugs for the undercover officer because the officer told him that he could keep one bag of crack cocaine.

The trial was open to the public save for the testimony of the two undercover officers. The court gave the jury a charge on the agency doctrine. The jury rejected defendant’s agency defense and convicted him as charged. He was later sentenced to two concurrent prison terms of 10 years followed by three years of postrelease supervision. The Appellate Division affirmed (89 AD3d 545 [1st Dept 2011]), and a Judge of this Court granted defendant leave to appeal (18 NY3d 957 [2012]).

Moss

Defendant Andrew Moss was charged with criminal sale of a controlled substance in the third degree for selling 10 bags of crack cocaine to undercover officer number 2454. Undercover officer number 5986 acted as a ghost during the operation. The sale took place on the corner of West 135th Street and Broadway in northern Manhattan. Before trial, the court held a Hinton hearing to decide whether to close the courtroom during the testimony of the undercover officers as a safety measure.

Officer number 5986 worked in an area that included the 30th precinct, which encompassed West 135th Street and Broadway, and testified that he had made 15 to 20 narcotics purchases in the immediate vicinity subsequent to defendant’s arrest—one as recently as a week before the hearing. He had a number of pending cases and lost subjects from that area. The officer had also been threatened and searched by suspects on prior occasions and took steps to maintain his anonymity in the courthouse.

Officer number 2454 primarily worked in the 33rd precinct— immediately adjacent to the 30th precinct—but remained active in the 30th precinct. He testified that he had made an additional 30 to 40 buys in the immediate vicinity of West 135th Street and Broadway after defendant’s arrest and had 10 pending cases arising from purchases in that area. He had previously been threatened with guns, knives and scissors, and one suspect had placed a contract on his life. He had also been patted down 50 times by suspects and had encountered them in and around the courthouse on prior occasions. The officer therefore took steps to preserve his cover when he entered a courthouse to testify, including using a private entrance normally reserved for judges.

At the conclusion of the Hinton hearing, defense counsel objected to the courtroom closure. As an alternative, defense counsel suggested that the court could post a court officer at the door to “screen” visitors. In response to defense counsel’s comment that courtroom closure was unnecessary because it was unlikely that anyone would attend, the court noted that probation violators frequently sat in the audience awaiting their proceedings. The court determined that it would close the courtroom during the testimony of both officers because the People had sufficiently demonstrated that open court testimony would jeopardize their safety. The court made an exception for family members, however, and defendant’s mother attended the full trial.

At trial, undercover officers, numbers 2454 and 5986, testified about the drug transaction and identified defendant as the seller. The arresting officer, a criminalist and an expert also testified for the People in open court. The jury convicted defendant as charged, and he was subsequently sentenced to 10 years’ imprisonment with three years of postrelease supervision. The Appellate Division affirmed (89 AD3d 600 [1st Dept 2011]), and a Judge of this Court granted defendant leave to appeal (18 NY3d 960 [2012]).

Johnson

Defendant Martin Johnson was charged with criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds for selling a small quantity of crack cocaine to undercover officer number 206 while undercover officer number 0014, the ghost, watched from a short distance away. The transaction took place on East 132nd Street and Park Avenue in East Harlem. The court conducted a pretrial Hinton hearing to ascertain whether it was necessary to close the courtroom during the officers’ testimony to protect their safety.

At the hearing, officer number 206 stated that almost all of his 10 open cases involved buys “within the vicinity where this case took place.” He had been in the area of defendant’s arrest as recently as two weeks before the hearing and expected to return there for future undercover work. In addition, he had 20 subjects who were still at large. He took precautions when entering the courthouse and had been threatened by drug dealers in the past. The officer had also been “struck up side the head” and had an object thrown at him. Officer number 0014 similarly testified that he had a number of open cases emanating from “the same vicinity as where this case occurred.” He remained active in that area after defendant’s arrest, participating in 50 additional buys during that time period, and expected to be assigned there for future investigations. He also took precautions to shield his identity when he visited courthouses and had been threatened with weapons multiple times while working undercover. On one occasion, he was forced to dive behind a car when a suspect opened fire on him.

After the hearing, defense counsel objected to the courtroom closure. The prosecutor responded that there was “no lesser option” than closure to protect the officers’ safety. The court granted the People’s application “to the limited extent” of ordering closure during the testimony of the undercover officers, excepting defendant’s family members.

At trial, officer number 206 testified that defendant took $20 from him, entered a building and returned with crack cocaine. Officer number 0014 observed the transaction. The arresting officer and a criminalist also testified in open court. The court gave a jury charge on the agency defense, which the jury rejected when it convicted defendant as charged. He was sentenced to concurrent three-year prison terms to be followed by two years’ postrelease supervision. The Appellate Division affirmed (88 AD3d 503 [1st Dept 2011]), and a Judge of this Court granted defendant leave to appeal (19 NY3d 1103 [2012]).

II.

All three defendants maintain that they are entitled to a new trial because they were deprived of their constitutional right to a public trial due to the exclusion of the general public during the testimony of the undercover officers. Although a criminal defendant’s Sixth Amendment right to an open trial is fundamental, it is not absolute (see People v Martin, 16 NY3d 607, 611 [2011]). Rather, trial judges have “inherent discretionary power to exclude members of the public from the courtroom” (People v Ramos, 90 NY2d 490, 497 [1997] [internal quotation marks and citations omitted]). Nevertheless, there remains a presumption of openness. As a result, the right to a public trial “may yield to other rights or interests in rare circumstances only, and the balance of interests must be struck with special care” (id. [internal quotation marks and citations omitted]). A violation of this right is not subject to harmless error analysis and mandates reversal.

The United States Supreme Court has explained that a courtroom closure must satisfy a four-part standard to comport with the requirements of the Sixth Amendment:

“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure” (Waller v Georgia, 467 US 39, 48 [1984]).

Only the first prong (overriding interest) and third prong (reasonable alternatives) are at issue in these cases.

A.

Moss and Johnson, but not Echevarria, argue initially that the People failed to demonstrate a sufficient likelihood of prejudice to an overriding interest to justify closing the courtroom during the testimony of the undercover officers under the first prong of the test. In particular, Moss asserts that undercover officer number 2454’s safety concerns were geographically unfounded because he was generally assigned to the 33rd precinct whereas Moss’s arrest occurred in the 30th precinct. Johnson similarly contends that the Hinton hearing testimony regarding the geographic area in which both undercover officers continued to work was too vague or generalized to support closure under prong one. We disagree.

We have previously had occasion to analyze the first Waller prong in the specific context of officer safety in undercover buy- and-bust operations (see People v Jones, 96 NY2d 213 [2001]; Ramos, 90 NY2d 490; People v Ayala, 90 NY2d 490 [1997] [companion case to Ramos]; People v Martinez, 82 NY2d 436 [1993]; People v Pearson, 82 NY2d 436 [1993] [companion case to Martinez]; see also People v Jones, 47 NY2d 409 [1979]; Hinton, 31 NY2d 71).

The safety of law enforcement officers “unquestionably” may constitute an overriding interest (Ramos, 90 NY2d at 498). Yet, “the mere possibility that this safety interest might be compromised by open-court testimony does not justify abridgement of a defendant’s constitutional right to a public trial” (id.). The United States Supreme Court has made plain that the proponent of closure must demonstrate a “substantial probability” that the identified interest will be prejudiced by an open courtroom (Press-Enterprise Co. v Superior Court of Cal., County of Riverside, 478 US 1, 14 [1986] [Press-Enterprise II]). Hence, a nexus or “specific link must be made between the officer’s safety concerns and open-court testimony in the particular buy-and-bust case” (Ramos, 90 NY2d at 498; see also Jones, 96 NY2d at 217).

In Martinez, for example, we held that the trial judge improperly closed the courtroom where the undercover officer testified that he continued to work “in the Bronx area” and generally feared for his safety (82 NY2d at 443). We concluded that the first prong was not met by this “perfunctory showing,” emphasizing that the officer’s reference to the Bronx area—a borough consisting of more than 41 square miles and 1.2 million people—without greater specificity was insufficient (id.). We also noted that the officer did not indicate whether he had ever received a threat, nor did he identify any targets of investigation who could potentially show up in the courtroom.

On the other hand, the requisite nexus was established in Ramos. In that case, both undercover officers continued to operate in the 104th precinct—the precinct where defendant was arrested—and expected to resume undercover operations there shortly. Moreover, the officers had observed former “buy” subjects at the courthouse on prior occasions and had several cases pending before the court (90 NY2d at 499). They each took precautions to conceal their identities when entering the courthouse and one gave specific testimony about a gunpoint threat he had received when a former subject discovered he was a police officer. Under these circumstances, we upheld the closure of the courtroom during the officers’ testimony.

Similarly, in Ayala, although a “closer question,” we concluded that there was a specific link between the undercover officer’s safety concerns and his open-court testimony (90 NY2d at 499). There, the officer identified three precincts in which he was recently active and expected to return imminently. These included the precinct where he bought drugs from the defendant and the precinct in which the courthouse was situated. Though the officer could not pinpoint the area of future operations with any greater precision, we determined that the testimony was sufficiently specific, explaining that the officer’s reference to “certain precincts was akin to identifying the particular neighborhoods in which he continued to be active” (id. at 500). We also noted that the officer had a number of ongoing investigations in the three precincts; he had been previously threatened in front of the courthouse by a defendant in another case; and he used a private entrance to the courthouse. “On balance,” we determined that the trial court did not abuse its discretion in finding the first prong satisfied (id.).

Moss’s case falls comfortably within the ambit of Ramos and Ayala. Although defendant notes that undercover officer number 2454 was mainly assigned to a precinct other than the one where defendant was arrested, the officer made clear that he continued to operate in the precinct of the arrest as well. Indeed, the officer made dozens of buys in the immediate vicinity following defendant’s arrest. He had a number of open cases from the area of the arrest and stated that he could be assigned to that particular area at any time. Based on this track record, the inference was strong that the officer would return to the specific location of defendant’s arrest for future undercover work. The officer also referred to numerous gun and knife threats he had received; the previous encounters he had with suspects in the courthouse; and the steps he took to protect his identity when entering courthouses. Taken together, the record amply supports the trial court’s determination that a specific link existed between the officer’s safety and his open-court testimony.

The overriding interest prong was also met in the Johnson case. Both undercover officers stated that they remained active in the “vicinity” where defendant’s case “took place.” Indeed, undercover officer number 0014 engaged in dozens of narcotics purchases in the “area of this case” subsequent to defendant’s arrest. Both officers also expected to return to the neighborhood for future undercover operations. Although defendant now claims that the officers’ references to the “area” or “vicinity” of his arrest—without specifically referring to street names— were too vague, he did not voice this concern at the Hinton hearing. In any event, the obvious implication of the testimony was that the area or vicinity to which the officers were referring meant the localized area of defendant’s arrest. The officers’ testimony was therefore sufficiently specific under our precedents. Finally, both officers had been threatened or physically attacked with weapons, including guns, and took care to conceal their identities when at courthouses. Under these circumstances, the trial court did not err in finding a nexus between the officers’ safety and their testimony in an open courtroom.

Having concluded that prong one of the Waller test was satisfied, we now turn to defendants’ prong three claims.

B.

Echevarria, Moss and Johnson all contend that their constitutional right to a public trial was violated because the trial judge in each case failed to comply with the third prong of Waller— the requirement that courts consider reasonable alternatives to closure. They assert that prong three places an obligation on trial courts to expressly consider and comment on alternatives to closure on the record, and that the failure to do so automatically necessitates reversal and a new trial. They rely heavily on Presley v Georgia (558 US 209 [2010]), which held that trial courts are to consider alternatives to closure even when they are not suggested by the parties. Defendants claim that the trial courts below should have discussed the possibility of having the undercover officers testify from behind a partition or posting a court officer at the door to “screen” entrants to the courtroom.

In response, the People acknowledge that trial courts are required to evaluate alternatives to closure pursuant to prong three. But the People submit that, under Ramos, trial courts need not take the additional step of explaining those alternatives on the record in those cases where “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” (Ramos, 90 NY2d at 504). The People posit that Presley did not overrule this aspect of Ramos and, therefore, we should reaffirm Ramos under principles of stare decisis. Although the dissent disagrees, we believe that the People have the better argument.

In Ramos, we addressed and squarely rejected prong three arguments identical to those defendants raise before us now. The trial court in Ramos (and Ayala, the companion case) closed the courtroom during the testimony of undercover officers to protect their safety but did not explicitly discuss alternatives short of closure on the record. We considered whether the trial courts’ failure to vocalize alternatives under the circumstances was compatible with the requirements of the third Waller prong. At the outset of our analysis in Ramos, we agreed with the defendants that prong three requires “trial courts, before excluding the public, to consider whether something short of complete closure would protect the ‘overriding interest’ at stake” (Ramos, 90 NY2d at 502-503). Indeed, we noted that Waller itself mandated that trial judges “must consider reasonable alternatives to closing the proceeding” (id. at 503, quoting Waller, 467 US at 48). But we also observed that Waller “does not hold that the trial court must explicitly consider alternatives on the record” to satisfy its prong three obligation (id.). To resolve this question—the very question before us on the present appeal—we surveyed the United States Supreme Court cases that had found prong three violations.

We started with Waller, where the record plainly did not justify the trial court’s closure of the entire seven-day suppression hearing. Only a small portion of the hearing—totaling 21fe hours—involved sensitive information that the government sought to shield from the public, and no showing was made that the remaining six-plus days of the hearing should have been closed. In light of this facial record deficiency, we stated that the Waller trial court’s “overly broad closure order could not be upheld without some explanation for its failure to limit closure to the sensitive portions of the proceeding” (id.). Put differently, because it was apparent on the face of the record that the trial court in Waller did not consider reasonable alternatives—most notably limiting closure to the 2V2-hour period—the United States Supreme Court found a prong three violation (see Waller, 467 US at 48-49 [“The court did not consider alternatives to immediate closure of the entire hearing: directing the government to provide more detail about its need for closure . . . and closing only those parts of the hearing that jeopardized the interests advanced”]).

Next, we looked at Press-Enterprise Co. v Superior Court of Cal., Riverside Cty. (464 US 501 [1984] [Press-Enterprise I]). In that case, in an effort to protect sensitive information relayed by potential jurors and encourage juror candor, the trial court closed all but three days of a six-week voir dire in a rape and murder trial at the government’s behest. We noted that, as in Waller, the proponent of closure “failed to adduce adequate record facts to support the conclusion that the entire voir dire proceeding would involve sensitive juror questioning” (Ramos, 90 NY2d at 503). Despite this glaring record deficiency, the trial court in Press-Enterprise I “made no effort to limit closure to those portions of the proceeding comprising sensitive subject matter” (id.). The trial court later refused to release a transcript of the closed proceeding, even though it acknowledged that the questioning was “of little moment” (Press-Enterprise I, 464 US at 504). Under these circumstances, the United States Supreme Court concluded that there was a prong three “failure to consider alternatives to closure and to total suppression of the transcript” (id. at 513).

Finally, we evaluated Press-Enterprise II, a case in which the trial court in a high profile murder trial granted the defendant’s unopposed motion to close the entirety of a preliminary hearing to the public. Thereafter, the trial court refused to release a transcript of the 41-day-long closed proceeding. We stated that the United States Supreme Court was clearly “concerned about the excessive breadth of the closure” in that case (Ramos, 90 NY2d at 503). The Supreme Court held that the trial court violated prong three by failing to consider “alternatives short of complete closure,” noting that “closure of an entire 41-day proceeding would rarely be warranted” (Press-Enterprise II, 478 US at 14-15).

In reviewing these United States Supreme Court decisions in Ramos, we found that the records in all three “lacked minimally sufficient facts to establish that the portions of the proceedings subject to closure would even implicate the interests sought to be protected” (Ramos, 90 NY2d at 503). We explained that the need to more narrowly design closure in those cases was apparent from the record because only those parts of the proceedings that prejudiced an overriding interest could be closed. In contrast, the trial court in Ramos (and Ayala) narrowly tailored the courtroom closures to the portions of the proceedings for which overriding safety interests were implicated, i.e., during the testimony of the undercover officers. Ultimately, we held that where the record in a buy-and-bust case “makes no mention of alternatives but is otherwise sufficient to establish the need to close the particular proceeding ... it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” (id. at 503-504 [emphasis added]). In other words, we rejected the precise argument defendants now press—that the trial court must always explicitly explain that it has considered but rejected alternative measures to comply with prong three.

Nevertheless, defendants and the dissent urge that Ramos is no longer good law in light of Presley. During jury selection in Presley, the trial court observed a lone spectator in the courtroom, petitioner’s uncle. The court instructed the uncle to leave, explaining that the entire courtroom was needed to seat prospective jurors and that there was no space for the public. When defense counsel requested an “accommodation,” the trial court refused, stating that each row was needed for the 42 prospective jurors and that a family member “cannot sit and intermingle with members of the jury panel” (Presley, 558 US at 210). After petitioner’s conviction, he moved for a new trial based on the exclusion of the public from the voir dire. In support of his motion, he adduced evidence establishing that 14 prospective jurors could have fit in the jury box and the remaining 28 could have been seated on one side of the courtroom, leaving sufficient space on the other side for the public. The trial court denied the motion and the Supreme Court of Georgia affirmed, reasoning that trial courts need not consider alternatives to closure unless the opposing party proactively offers a suggestion.

The United States Supreme Court reversed in Presley and ordered a new trial, holding that Waller itself made “clear” that, under the third prong, “trial courts are required to consider alternatives to closure even when they are not offered by the parties” (558 US at 214). The trial court’s exclusion of the public during the voir dire was deemed improper because the third prong was not satisfied on the record:

“Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at [petitioner’s] trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members” (558 US at 215).

The core teaching of Presley is that prong three obliges trial courts to consider reasonable alternatives to closure, even where the parties themselves do not bring those alternatives to the attention of the court. To the extent Ramos is read to suggest otherwise, Presley certainly controls. But contrary to the dissent’s view, Presley did not break new ground, and it nowhere states that it is incumbent on trial courts, regardless of the circumstances, to engage in a verbal on-the-record review of all potential alternatives before opting for a limited closure. Nor do we read Presley as calling into question our holding in Ramos that the record in a given buy-and-bust case may support the conclusion that the trial judge impliedly considered alternatives before closing the courtroom. Indeed, in stark contrast to Ramos, the record in Presley made clear that the trial judge’s exclusion of the public (and petitioner’s family member in particular) was unwarranted and that the space constraints could have easily been remedied using less intrusive measures. Hence, we adhere to that portion of Ramos that held that the absence of explicit discussions regarding alternatives is not fatal under prong three where the record in a buy-and-bust case otherwise suffices to establish the need to close a particular portion of the proceeding. Under those circumstances, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” (Ramos, 90 NY2d at 504).

Applying Ramos here, we perceive no prong three violation in the cases now before us. As in Ramos, the trial court in each instance held a Hinton hearing and made a particularized finding that requiring the undercover officers to testify in open court would create a genuine risk to their physical safety. The trial courts limited the closures to the portions of the proceedings directly implicating the overriding interest—the undercover officers’ safety—by ordering the courtrooms closed only for the duration of the officers’ testimony. Moreover, even those portions were only partially closed in the Moss and Johnson proceedings because the trial courts in those cases made an exception for defendants’ family members to attend. Similarly, at the Echevarria trial the court stated that it would separately consider opening the closed portion to family members if they requested access. On the record before us, it is fair to imply that the trial courts concluded that no lesser alternative would have adequately protected the officers’ safety and, therefore, the courts discharged their prong three duty to consider reasonable alternatives.

In sum, we conclude that defendants were not deprived of their Sixth Amendment rights to a public trial by the trial courts’ narrowly-tailored closures. But we caution that courtroom closure is not available just for the asking in buy-and-bust cases. As we emphasized in Ramos, a criminal defendant’s Sixth Amendment rights “must not be lightly cast aside simply because the People claim that an undercover officer’s safety or effectiveness is at risk, and trial courts must vigilantly ensure that Waller’s demanding first prong is satisfied before closing a courtroom” (id. at 506). Those sentiments are no less true today.

III.

Apart from their public trial claims, Echevarria and Johnson separately assert that they are entitled to a new trial because the trial court in each of their cases gave an erroneous jury charge on the agency defense. They both contend that the courts’ failure to enumerate all six agency factors listed in the pattern Criminal Jury Instructions (CJI) constitutes reversible error. Echevarria further maintains that the trial court erred by instructing the jury that a finding of no prior relationship between the undercover officer and defendant would “negate” the agency defense. The People counter that the jury charge given in both cases, read as a whole, properly conveyed the agency concept and that, in any event, neither defendant was entitled to a charge on the facts presented.

Under the agency doctrine, “one who acts solely as an agent for the buyer of narcotics cannot be convicted of the crime of selling those narcotics, notwithstanding that the act of transferring drugs to another falls within the statutory definition of ‘sell’ ” (People v Ortiz, 76 NY2d 446, 448-449 [1990]). It is not a complete defense, however, in that it acknowledges wrongdoing (possession) on the part of the defendant (see People v Watson, 20 NY3d 182, 190 [2012]). A defendant is entitled to a jury charge on the agency defense where “there is some reasonable view of the evidence that the defendant acted as a mere instrumentality of the buyer” (People v Roche, 45 NY2d 78, 86 [1978]).

In assessing whether the defendant acted solely to accommodate the buyer, the jury may consider a number of factors, including:

“the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction” (Watson, 20 NY3d at 186 [internal quotation marks and citation omitted]).

But we have also made clear that jurors must rely on their “own common sense and experience” in resolving the agency issue, and that the jury “should be able to perceive the reality of the situation . . . without minutely detailed . . . instruction from the court” (People v Lam Lek Chong, 45 NY2d 64, 75 [1978] [internal quotation marks and citation omitted]). At bottom, there is no “legal formula” for determining whether a defendant was the buyer’s agent (id.).

Applying these principles, the jury charge in Johnson’s case was proper. The court appropriately instructed the jury regarding the underlying theory of the agency defense and proceeded to list the first five factors set forth in the CJI charge. The jury was certainly capable of gathering from the language of the charge “the correct rules which should be applied in arriving at [a] decision” (People v Umali, 10 NY3d 417, 427 [2008] [internal quotation marks and citations omitted]). Hence, there was no error.

We reach a different conclusion in the Echevarria case. There, the trial court limited its charge to two of the factors found in the CJI, both of which were unfavorable to defendant. Moreover, the court instructed the jury that the lack of a prior relationship between defendant and the undercover officer would negative the agency defense. But our precedents and the CJI charge specify that the nature and extent of a relationship is but one factor (albeit an important one) for a jury to consider in assessing the agency defense. Hence, the imbalanced charge did not convey the proper analytical framework and was therefore error.

Contrary to the People’s position, the error was not harmless. On this record, there was a reasonable view of the evidence that defendant was acting as the undercover officer’s agent. Defendant testified that he was a drug addict (a user not a seller) who offered to help out someone whom he believed to be a fellow addict. He denied initiating the transaction and had never been convicted of selling drugs. There was also evidence that, prior to the transaction, the drugs were exclusively within the control of a drug dealer in the nearby building. Although defendant testified that the officer gave him a bag of crack for his assistance, the receipt of an incidental benefit does not in itself negate an agency defense (see Lam Lek Chong, 45 NY2d at 75-76). We conclude that Echevarria is entitled to a new trial.

Accordingly, in Echevarria, the order of the Appellate Division should be reversed and a new trial ordered; in Moss and Johnson, the orders of the Appellate Division should be affirmed.

Chief Judge Lippman (dissenting in part).

I respectfully dissent in Johnson because I believe that the majority’s holding eviscerates the substance of Presley v Georgia (558 US 209 [2010]) in New York State criminal trials, and allows such issues to escape meaningful appellate review.

The right of a criminal defendant to a public trial is fundamental (People v Martin, 16 NY3d 607, 611 [2011]; US Const 6th, 14th Amends; see also Civil Rights Law § 12; Judiciary Law § 4). And, although it “may give way in certain cases to other rights or interests,” “[s]uch circumstances will be rare . . . and the balance of interests must be struck with special care” (Presley, 558 US at 213 [internal quotation marks omitted]). Like the Georgia trial court in Presley, the court in Johnson did not consider any alternatives to closing the courtroom. Possible reasonable alternatives to closure included the posting of a court officer outside the courtroom door to screen entrants, or having the witness testify behind a screen or in disguise (see e.g. People v Jones, 96 NY2d 213, 215 [2001]; People v Martinez, 82 NY2d 436, 444 [1993]; People v Muniz, 273 AD2d 138, 139 [1st Dept 2000]; People v Oliphant, 258 AD2d 536, 536-537 [2d Dept 1999]; Carson v Fischer, 421 F3d 83, 90 [2d Cir 2005]; United States v Lucas, 932 F2d 1210, 1216-1217 [8th Cir 1991]). If it was not previously clear that the court is required to consider alternatives even if they are not proposed by the parties (see People v Ramos, 90 NY2d 490, 504-505 [1997]), it is now (Presley, 558 US at 214), and this Court has recognized that “[e]ven [if] . . . the trial court ha[s] an overriding interest in closing [a part of the trial], it [i]s still incumbent upon it to consider all reasonable alternatives to closure” (Martin, 16 NY3d at 612 [internal quotation marks omitted], quoting Presley, 558 US at 216).

The Supreme Court in Presley reiterated that, “before excluding the public from any stage of a criminal trial,” trial courts are required to apply the following four standards: (1) “[t]he party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced”; (2) “the closure must be no broader than necessary to protect that interest”; (3) “the trial court must consider reasonable alternatives to closing the proceeding”; and (4) the trial court “must make findings adequate to support the closure” (Presley, 558 US at 213-214 [internal quotation marks omitted], quoting Waller v Georgia, 467 US 39, 48 [1984]). If a trial court fails to adhere to this procedure, any closure is unjustified and will require reversal (Presley, 558 US at 215).

With respect to the requirement that reasonable alternatives to closure be considered, the Supreme Court could not have been clearer: “[e]ven with findings adequate to support closure, the trial court’s orders denying access to voir dire testimony failed to consider whether alternatives were available .... Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire” (id. at 214 [internal quotation marks omitted and emphasis added]). Then the Court took pains to underscore that “[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at [petitioner’s] trial” (id. at 215 [emphasis added]). There is nothing in this language that would suggest that the Supreme Court had in mind that an “implied” consideration of alternatives would be constitutionally acceptable. Were that the case, the Court would not have attached dispositive significance to the absence of the required consideration in the trial court’s orders and the trial record. It is to state the obvious that Presley does not contemplate an unreviewable, purely contemplative exercise in satisfaction of a trial court’s obligation to consider reasonable alternatives to court closure. The notion advanced in Ramos, to which the majority continues to cling notwithstanding its rejection in Presley, that the mandated sua sponte consideration of alternatives to closure may be implied from the order granting closure, cannot be justified. The constitutional presumption is that criminal trials are to be open to the public. If that presumption is to be overcome, it cannot be by implication, otherwise a reviewing court cannot ascertain that the closure is essential.

It is of paramount importance to place particularized reasoning on the record when a defendant’s constitutional rights may be abrogated by overriding interests (see Martin, 16 NY3d at 613 [“(a) denial of the public trial right requires an affirmative act by the trial court”] [internal quotation marks omitted]). In Johnson, although the prosecutor argued to the court that there were “no lesser option[s]” than closure to protect the officers’ safety, there was no way to know whether the trial court abused its discretion without the court actually considering and rejecting those options on the record. And in Echevarria—in which I concur in the reversal based on the agency charge error, but disagree with the majority regarding the court closure issue— there was also no mention of alternatives. The undercover officers might have been able to safely testify with a disguise or behind a partition, or an officer stationed outside the courtroom might have screened would-be spectators and excluded only those individuals who live in the vicinity of the arrest.

As we stated in an analogous context in People v Clyde (18 NY3d 145, 153 [2011]), in which a defendant was shackled without a trial judge’s explicit reasoning on the record, “[w]e cannot tell from the record whether County Court shackled Clyde as a matter of routine because he had already been convicted of a violent crime, or whether the court engaged in case-specific reasoning that led to the conclusion that shackles were necessary” (see also People v Buchanan, 13 NY3d 1 [2009] [a stun belt may not be used to restrain a defendant in a criminal case without a finding of specific facts on the record justifying the use of such a restraint]). Similarly here, there is no way to know whether any alternatives were actually considered, or whether the courtroom was closed as a matter of course, once safety concerns were implicated by the officers’ testimony.

Because the command of Presley is binding, trial courts must actually and explicitly meet their constitutional obligation by sua sponte “tak[ing] every reasonable measure” to keep the court open to the public by “considering] all reasonable alternatives to closure” (558 US at 215, 216).

I note in this connection that the majority ignores, without explanation, Waller’s requirement that a trial court “make findings adequate to support the closure” (467 US at 48). It comports with the most basic logical understanding of that language that a trial court explain not only the overriding interest that might justify closure but, in addition, what reasonable alternatives to closure were considered and rejected (see Guzman v Scully, 80 F3d 772, 776 [2d Cir 1996] [trial judge’s “conclusory justification” for closing courtroom during witness testimony failed to satisfy obligation to make findings supporting closure]; see also Downs v Lape, 657 F3d 97, 115-116 [2d Cir 2011] [a record with no findings fails Waller]).

The majority suggests that limiting closure duration and permitting family attendance work in tandem to satisfy the second and third prongs of Waller. But those two limitations only satisfy the second prong concerning breadth (People v Kin Kan, 78 NY2d 54, 58-59 [1991] [exclusion of defendant’s family overbroad under Waller]; People v Nazario, 4 NY3d 70, 72 [2005] [same]; People v Nieves, 90 NY2d 426, 430 [1997] [same]; People v Frost, 100 NY2d 129, 137 [2003] [limiting length of closure to testimony of undercover officers goes to breadth of closure]; People v Jones, 96 NY2d 213, 220 [2001] [same]; see also Carson v Fischer, 421 F3d 83, 89-90 [2d Cir 2005] [“(w)hether a closure is narrow or broad depends on several factors, including its duration, whether the public can learn what transpired while the trial was closed (e.g. through transcripts), whether the evidence was essential, and whether selected members of the public were barred from the courtroom, or whether all spectators were excluded”]). Presley holds, in no uncertain terms, that the question of a closure’s necessity, and the entailed consideration of whether there are alternatives thereto should not be confused with that of whether a closure whose necessity has been shown has been narrowed to the extent reasonably possible (558 US at 214-215).

I join the Court’s affirmance in People v Moss because there the trial court considered what it thought was the only reasonable alternative to closure, placing an officer outside the courtroom, and considered and rejected this option on the record. Although that practice may entail its own problems, at least it may have been a reasonable alternative to closure for the testimony of undercover officers, and at least it was considered and rejected on the record. The record in Moss demonstrates that this consideration was not a litany, but a particularized deliberation of a case-specific alternative.

It is simply not enough for the Court to limit closure to the duration of an undercover’s testimony and allow the defendant’s family’s presence in the courtroom. Without any further findings explained on the record, the closure itself remains without the constitutionally requisite justification. Such a closure satisfies, at most, prongs one and two of Waller, yet the majority gives trial courts carte blanche to do just that. Courtroom closures for testimony of undercover officers are frequent in our state, and thus faced with a threat of it becoming routine, if not the rule, it is all the more important to ensure that all steps articulated by Presley are undertaken with the requisite particularity and gravity appropriate to safeguard defendants’ rights.

In People v Echevarria: Order reversed and a new trial ordered.

Opinion by Judge Graffeo. Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur, Chief Judge Lippman in a separate opinion, in which Judge Rivera concurs.

In People v Moss: Order affirmed.

Opinion by Judge Graffeo. Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur, Chief Judge Lippman in a separate opinion, in which Judge Rivera concurs.

In People v Johnson: Order affirmed.

Opinion by Judge Graffeo. Judges Read, Smith and Pigott concur. Chief Judge Lippman dissents in an opinion, in which Judge Rivera concurs.

      . “In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial” (US Const 6th, 14th Amends).

      . Defendant does not challenge the trial court’s finding that an overriding safety interest existed with respect to undercover officer number 5986.

      . Press-Enterprise I and Press-Enterprise II implicated the First Amendment right of public access to criminal proceedings. Although the United States Supreme Court has yet to decide whether the First and Sixth Amendment public trial rights are coextensive (see Presley, 558 US at 213), it has applied the four-prong Waller test in both contexts.

      . Presley was a per curiam summary disposition, handed down without briefing or oral argument.

      . As we discussed in Ramos, the alternatives to a limited courtroom closure in a buy-and-bust case—the use of a partition, disguise or guard stationed at the door—pose their own problems and are “potentially prejudicial to the defendant” (Ramos, 90 NY2d at 505). Although it may be the “better practice” (id. at 506) for the trial court to openly discuss these possibilities, it is not constitutionally mandated under the circumstances of the cases before us.

      . The CJI charge offers six examples that would tend to support the agency defense:
      “1. That, prior to the transaction, the defendant and (specify name of buyer) were known to each other and had a relationship.
      “2. That Qspecify name of buyer), and not the defendant, first suggested the transaction.
      “3. That the defendant said nothing to promote the sale.

        “4. That the defendant did not receive any benefit for his/her participation in the alleged sale. Or, if the defendant received a benefit from {specify name of buyer), it was incidental, for example, in the nature of a share of the drug or a tip, as a token of appreciation, and not in consideration for selling.
      “5. That prior to the transaction, the {name of controlled substance [marihuana]) in question was controlled exclusively by a person other than the defendant.
      “[6. That the defendant had not at any other time engaged in the sale of a controlled substance [marihuana] (or, the possession of a controlled substance [marihuana] with the intent to sell it).]” (CJI2d[NY] Defenses—Agency).
      The CJI charge then lists the six inverse factors that would militate against the agency defense.

       I limit this portion of my dissent to the threshold requirement of a trial court’s sua sponte explicit consideration of alternatives on the record. Once the mandate of Presley is acknowledged, the court would need to determine what alternatives are reasonable and viable under particular circumstances. However, under today’s decision, the majority requires none of the above.


source: Caselaw Access Project

author: Read, J. Rivera, J. (dissenting).

license: Public Domain

text:
    [989 NE2d 1, 966 NYS2d 739]
    The People of the State of New York, Respondent, v Terrance Monk, Appellant.
    Argued March 21, 2013;
    decided April 30, 2013

      POINTS OF COUNSEL

      Scott B. Tulman & Associates, PLLC, New York City (Scott B. Tulman of counsel), for appellant.
    I. The trial court’s failure to advise appellant during the guilty plea allocution of the maximum permissible term of incarceration he faced as the result of postrelease supervision requires reversal of his conviction because this potential effect of postrelease supervision is a direct penal consequence of the guilty plea and appellant timely moved to withdraw his guilty plea on that ground. (People v Lynn, 28 NY2d 196; People v Nixon, 21 NY2d 338; Boykin v Alabama, 395 US 238; People v Harris, 61 NY2d 9; People v Ford, 86 NY2d 397; Cuthrell v Director, Patuxent Inst., 475 F2d 1364; People v Harnett, 16 NY3d 200; People v Weekes, 28 AD3d 499; People v Pearson, 55 AD3d 314; People v Achaibar, 49 AD3d 389.) II. The trial court should have granted appellant’s timely motion to withdraw his guilty plea premised on appellant’s claimed lack of understanding as to the postrelease supervision component of his sentence or, at a minimum, afforded him a meaningful opportunity to be heard. (People v Nixon, 21 NY2d 338; People v Gravino, 14 NY3d 546; People v Harnett, 16 NY3d 200; Foucha v Louisiana, 504 US 71; People v Latham, 90 NY2d 795; People v Louree, 8 NY3d 541; People v Van Deusen, 7 NY3d 744; People v Catu, 4 NY3d 242; People v Mattison, 67 NY2d 462.)

      Janet DiFiore, District Attorney, White Plains (Laurie Sapakoff, Steven Bender and Richard Longworth Hecht of counsel), for respondent.
    I. Defendant’s negotiated guilty plea was not rendered involuntary because the court failed to advise him of the collateral consequences that might result from violating the conditions of postrelease supervision. (People v Ramos, 63 NY2d 640; People v Catu, 4 NY3d 242; People v Gravino, 14 NY3d 546;
      People v Harnett, 16 NY3d 200; People v Ford, 86 NY2d 397; People v Harris, 61 NY2d 9; Boykin v Alabama, 395 US 238; People v Boyd, 12 NY3d 390.) II. The possibility of further incarceration as a result of violating the conditions of post-release supervision is a “collateral” rather than a “direct” consequence. (People v Laster, 38 AD3d 242, 9 NY3d 846; People v Behlin, 33 AD3d 390, 8 NY3d 843; People v Muriqi, 9 AD3d 743, 3 NY3d 679; People v Catu, 4 NY3d 242; People v Ford, 86 NY2d 397; People v Gravino, 14 NY3d 546; People v McAlpin, 17 NY3d 936.) III. Failing to explain to a pleading defendant that further incarceration may result from a violation of postrelease supervision does not render a plea involuntary. (People v Gravino, 14 NY3d 546; People v Harnett, 16 NY3d 200; People v Stewart, 16 NY3d 839; People v Louree, 8 NY3d 541; People v Nixon, 21 NY2d 338; People v Hill, 9 NY3d 189; United States v Andrades, 169 F3d 131.)
   OPINION OF THE COURT

Read, J.

By indictment filed in Westchester County on June 17, 2004, defendant Terrance Monk was charged with first-degree robbery (Penal Law § 160.15 [3] [the robber “(u)ses or threatens the immediate use of a dangerous instrument”]), second-degree robbery (two counts) (Penal Law § 160.10), and second- and third-degree assault (Penal Law §§ 120.05, 120.00, respectively) in connection with an attack on a woman whom defendant and at least one accomplice were alleged to have followed into the driveway of her residence in Westchester County in the late evening hours of March 21, 2004. As the victim recounted what happened, defendant smashed the passenger side window of her car with a Belgian block thrown with such force that she suffered a broken rib and a bruised right arm; reached through the shattered glass and punched her in the back; and threatened to kill her if she did not get out of the car and go into her home, and to cut off her finger with a knife that he wielded if she refused to give him her ring. Defendant was accused of stealing the victim’s purse, cell phone, car keys, and ring before fleeing with an accomplice, leaving her cowering inside her car.

During plea negotiations, the assistant district attorney, at defense counsel’s behest, approached her counterparts in Rock-land County to seek agreement that the 10-year sentence then under discussion would run concurrently with whatever sentence was imposed on defendant to resolve charges pending against him for thefts in Rockland County, to which he anticipated soon pleading guilty. At a hearing on April 15, 2005, the assistant district attorney informed County Court that after “several phone calls to try and accommodate the defendant and his attorney on that,” she had secured the Rockland County district attorney’s commitment not to oppose concurrent sentencing. Defendant then agreed to plead guilty to attempted first-degree robbery (Penal Law §§ 110.00, 160.15 [3]), a class C violent felony, in full satisfaction of the indictment in Westchester County.

The judge put the sentence promise on the record before accepting defendant’s plea, advising him that the “[s]entence promise is a ten-year determinate] sentence^] concurrent with the sentence you’re going to receive in Rockland County[,] with a mandatory five-year post-release supervision period.” During the plea allocution, defendant acknowledged that on April 24, 1997, he had pleaded guilty to second-degree burglary (Penal Law § 140.25), a class C violent felony, for which he was sentenced to an indeterminate term of 3 to 6 years in prison, and, as a result, would be sentenced as a second violent felony offender; and that his guilty plea stood on its own, independent of any other conviction, including the disposition of the Rock-land County case.

At a court appearance on May 10, 2005, defense counsel (who was, in fact, defendant’s second attorney, The Legal Aid Society having previously successfully asked to be relieved), sought to be excused from representing defendant on the ground of irreconcilable differences. Additionally, she informed the judge that defendant, although not then speaking to her, had earlier “communicated a desire ... to withdraw his plea.” County Court granted the attorney’s application, and subsequently appointed new defense counsel.

By motion dated June 24, 2005, defendant, through his new attorney, moved to withdraw his guilty plea, alleging multiple grounds for doing so. As relevant to this appeal, he claimed that the sentence promise was deficient because the judge “did not explain to [him] at the time of the plea that a violation of the post release supervision could result in his being incarcerated for up to five additional years of imprisonment, over and above the ten years promised by the Court.”

In a decision and order dated August 17, 2005, County Court denied the motion. The judge noted that defendant “was informed that he was subject to a period of [five] years of post release supervision.” Further, because the “consequences of . . . violation of post release supervision are collateral to a defendant’s plea,” he was not required to describe them. At the sentencing proceeding that same day, defendant, who refused to answer the judge’s questions regarding his 1997 conviction, was adjudicated a second violent felony offender. County Court then sentenced him as agreed to, absent the “benefit of a promised concurrent sentence” since there was no plea agreement in Rockland County.

In an opinion and order dated March 15, 2011, the Appellate Division affirmed (83 AD3d 35 [2d Dept 2011]). The court commented that while neither this Court nor the Second Department had “yet addressed whether the consequences of violating the conditions of postrelease supervision must be expressly disclosed to defendants during in-court allocutions and before the judicial acceptance of guilty pleas,” the First and Third Departments had weighed in on the issue in cases where the claim was unpreserved, and “both Courts concluded [that] the consequences of violating the conditions of postrelease supervision are merely collateral, and that a court’s failure to allocute as to those consequences does not render pleas unknowing, involuntary, or unintelligent” (id. at 38, citing People v Laster, 38 AD3d 242, 243 [1st Dept 2007], lv denied 9 NY3d 846 [2007] [declining to review the defendant’s unpreserved claim that the court misinformed him as to the precise consequences of a violation of a condition of postrelease supervision, but noting that “(w)ere we to review this claim, we would reject it”]; People v Behlin, 33 AD3d 390, 390 [1st Dept 2006], lv denied 8 NY3d 843 [2007] [“reincarceration for violating the terms of post-release supervision is a collateral consequence of the plea”]; People v Muriqi, 9 AD3d 743, 744 [3d Dept 2004], lv denied 3 NY3d 679 [2004] [“County Court was not required to inform defendant of the consequences of not complying with the conditions of postrelease supervision, which conditions are set by the Board of Parole, as those were collateral consequences of his plea” (citation omitted)]).

The Second Department then agreed with the First and Third Departments that

“while a trial court must advise a defendant of the postrelease supervision component of a determinate sentence prior to the acceptance of a guilty plea, it need not allocute on the ramifications of violating the conditions of postrelease supervision, as those ramifications . . . are subject to the discretion of the Board of Parole, rendering them, by nature, merely collateral to pleas and sentences” (83 AD3d at 38-39).

A Judge of this Court granted defendant leave to appeal (17 NY3d 819 [2011]), and we now affirm.

We have repeatedly held that a trial court “must advise a defendant of the direct consequences of [a] plea,” but “has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions” (People v Catu, 4 NY3d 242, 244 [2005], citing People v Ford, 86 NY2d 397, 403 [1995]; see also People v Gravino, 14 NY3d 546, 553-554 [2010]). We have defined a direct consequence of a plea as “one which has a definite, immediate and largely automatic effect on defendant’s punishment” (Ford, 86 NY2d at 403). Put another way, direct consequences consist of “the core components of a defendant’s sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine” (People v Harnett, 16 NY3d 200, 205 [2011]). By contrast, collateral consequences are “peculiar to the individual and generally result from the actions taken by agencies the court does not control” (Ford, 86 NY2d at 403).

First, the consequences of violating postrelease supervision are uncertain at the time of the plea, depending, as they do, upon how a defendant acts in relation to a condition tailored to his circumstances and imposed in the future. Thus, such consequences are properly described as “peculiar” to the individual. Second, the New York State Board of Parole—not the courts—is responsible for establishing the conditions of a defendant’s post-release supervision (see Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i [3], [4]). Further, the Board decides whether or not a defendant has violated a condition of postrelease supervision, and, in the event a violation is determined to have occurred, the proper remedy. The Board’s options include simply restoring the defendant to supervision; placement in a parole transition facility for up to 180 days before restoring supervision; or reincarceration for some period of time, but no longer than the balance of the period of postrelease supervision to which the defendant was originally sentenced (see id. § 259-i [3] [fl [x]).

In sum, the ramifications of a defendant’s violation of the conditions of postrelease supervision are classic collateral consequences of a criminal conviction—i.e., they are “peculiar to the individual” and the product of “actions taken by agencies the court does not control” (see Ford, 86 NY2d at 403). These consequences are speculative at the time of the guilty plea, not “definite, immediate and largely automatic” (id.); they are not a “core componente ]” of the sentence imposed on the defendant by the judge to fulfill the bargain struck by the parties (see Harnett, 16 NY3d at 205).

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

Rivera, J. (dissenting).

The majority concludes that the possible reincarceration of defendant as a result of a violation of the conditions of postrelease supervision is “not a ‘core component[ ]’ of the sentence imposed on the defendant by the judge to fulfill the bargain struck by the parties” (majority op at 33 [citation omitted]), and therefore the trial court is under no obligation to notify defendant of such possible reincarceration. I believe the potential extent of imprisonment under the agreed-upon plea is central to the sentence, and I respectfully dissent.

It is well established that a “trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (People v Ford, 86 NY2d 397, 402-403 [1995], citing People v Harris, 61 NY2d 9, 19 [1983]). Indeed, “ ‘due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’ ” (People v Catu, 4 NY3d 242, 245 [2005], quoting Ford, 86 NY2d at 403).

A prison sentence encompasses both incarceration and post-release supervision (see Catu, 4 NY3d at 244; L 1998, ch 1 [Jenna’s Law]). Given the obvious implication and common understanding of the term “postrelease,” in order for a defendant to appreciate, in the constitutional sense, the nature of the components of the sentence, the defendant should be advised that there is a potential for reincarceration. Certainly how much time a defendant will spend in prison, with the attendant loss of freedom, is exactly the type of information essential to defendant’s “ ‘voluntary and intelligent choice among the alternative courses of action open to the defendant’ ” (see Catu, 4 NY3d at 245, quoting Ford, 86 NY2d at 403).

The constitutional duty to ensure that a defendant has a full understanding of what his or her plea connotes is of particular importance, given the central role of the plea bargaining process in criminal courts. It is an undeniable reality of our current criminal justice system that the majority of defendants will be sentenced in accordance with a negotiated plea (see e.g. Missouri v Frye, 566 US —, —, 132 S Ct 1399,1407 [2012] [“Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas”], citing Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, available at http://www.albany.edu/sourcebook/pdf/t5222009.pdf; Department of Justice, Bureau of Justice Statistics, Felony Sentences in State Courts, 2006—Statistical Tables, available at http:// bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf). As a result, the plea bargaining process is critical to the administration of justice (see Frye, 566 US at —, 132 S Ct at 1407 [“In today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant”]). Within our plea-based system of justice, defendants are overwhelmingly concerned with “whether he [or she] will be imprisoned and for how long” (People v Gravino, 14 NY3d 546, 559 [2010]).

Defendant, now a second violent felony offender, was subject to mandatory incarceration (see Penal Law § 70.04) with a five-year mandatory period of postrelease supervision (see Jenna’s Law). In order to fully understand the consequences of his plea, and thus waive his right to trial, defendant should have been informed that he may be incarcerated more time than suggested by that part of the sentence mandating postrelease supervision (see Catu, 4 NY3d at 245, quoting Ford, 86 NY2d at 403; see also People v Harnett, 16 NY3d 200, 209 [2011, Ciparick, J., dissenting] [“(A) defendant cannot be said to knowingly and voluntarily forgo his right to trial if he does not know the full extent of confinement that might result from his conviction”]).

This Court held in Catu that in order to meet its constitutional duty a trial court “must advise a defendant of the direct consequences of the plea” (Catu, 4 NY3d at 244, quoting Ford, 86 NY2d at 402-403). As we stated in People v Harnett (16 NY3d at 205), the “direct consequences of a plea” “are essentially the core components of a defendant’s sentence,” which include a term of imprisonment and a term of postrelease supervision. Here, the majority concludes that the consequences of a violation of postrelease supervision are merely collateral, as they are peculiar to the defendant, and outside the control of the court. Thus, the trial court’s duty ends once the defendant is informed that he or she will be confined for a period of time, then placed under postrelease supervision. I disagree because I believe that the extent of imprisonment is of singular importance to a defendant’s understanding of the plea, and thus is not merely collateral, but a core component of sentencing.

A trial court is not obligated to explore every possible consequence of a plea with a defendant, and there is no specific or required language for allocating a defendant (see Catu, 4 NY3d at 245). However, a trial court complies with constitutional requirements when it ensures that a defendant understands that there is a possibility of future incarceration even after he or she has been released to postrelease supervision.

I believe that defendant should be informed that the statutory allocation between incarceration and postrelease supervision may change in a direction adverse to defendant. I respectfully dissent.

Chief Judge Lippman and Judges Graffeo, Smith and Pigott concur with Judge Read; Judge Rivera dissents in an opinion.

Order affirmed.

       Plea negotiations in Rockland County fell apart some time after defendant pleaded guilty in Westchester County, and he went to trial on the Rock-land County indictment. The jury in Rockland County convicted defendant of first- and second-degree robbery (Penal Law §§ 160.15, 160.10, respectively), and first-degree burglary (Penal Law § 140.30). On November 15, 2005, defendant was sentenced for these crimes to an aggregate term of 17 years in prison, to be followed by five years of postrelease supervision (see People v Monk, 50 AD3d 925 [2d Dept 2008], lv denied 11 NY3d 791 [2008]).