Capital Newspapers Group of Hearst Corp. v. Brown

OPINION OF THE COURT Mahoney, P. J. The petitioners, Capital Newspapers Group of the Hearst Corporation and two reporters in its employ, commenced this proceeding to vacate an order which excluded the public and press from a motion hearing in a criminal case in Saratoga County in which the accused was charged with murder and robbery. Petitioners claim the order violated their right to hear and report matters of public interest and concern, as guaranteed by various statutory and constitutional provisions (see Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430), and seek relief in the nature of an order (a) declaring that the closure by respondent Brown was illegal, (b) enjoining respondent Brown from excluding the press in future criminal actions unless specific enumerated criteria are demonstrated, and (c) supplying petitioners with a copy of the minutes of the closed hearing. We note that although petitioners have been supplied with the minutes of the motion hearing and the criminal proceeding has been concluded with a jury determination of guilt, the question of media access to criminal proceedings is of such importance that mootness cannot be considered as a bar to consideration of the posited [220] issue (Gannett Co. v De Pasquale, 443 US 368, 378, affg 43 NY2d 370, 376). On November 26, 1979, after a jury had been impaneled, sworn and admonished, it was excused until the following morning. On the next day, after two prosecution witnesses had testified and following a bench conference with counsel, the court announced that a hearing would be held that afternoon out of the presence of the jury. The jury was again admonished and excused. Upon inquiry petitioners Di Lorenzo and Markey were advised by respondent Brown that he could not inform them if the hearing would be closed in the absence of any extant motion for such relief. During the luncheon recess petitioners Di Lorenzo and Markey contacted their editors and were advised to object to any motion for closure and to request a brief delay to permit appearance of petitioners’ counsel in opposition to any closure motion. That afternoon, after the hearing to determine if defendant’s confession was admissible began, defendant’s attorney moved to close the hearing. Other than making the statement "In view of the fact that the press may be here and it may be in the papers, it is a possibility that it could get through to the jurors”, defendant’s counsel offered no proof of possible prejudice. The District Attorney took no position with respect to the motion, and respondent Brown, after acknowledging that he had twice admonished the jury, expressed the view that it would be naive to believe that such admonitions could be effective, and, accordingly, closed the courtroom to the press and public. While we recognize that an open pretrial suppression hearing may be prejudicial to a defendant since it usually involves the admissibility of a confession, eyewitness testimony or other persuasive evidence of guilt, some or all of which may not be admissible at trial, it does not necessarily follow that closure is always necessary or even appropriate upon motion of the defendant. However, where, as here, the jury has been impaneled and the trial is underway, different considerations may obtain that would influence the judgment of the trial court in granting or denying defendant’s motion for closure. In either event, there must be a balancing of the defendant’s right to a fair trial in an atmosphere unimpregnated by prejudice and the public’s right not only to attend pretrial as well as trial proceedings but to be informed about them (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 378-379, affd 443 US 368, supra). While this delicate, sensitive [221] duty is properly that of the Trial Judge, who is not only thoroughly familiar with the charges and the defense thereto, but is the only judicial officer exposed to the local mood, temper or viewpoint created by the case at issue, he is not without guidelines to assist him in the act of reconciling these competing interests. Thus, when a defendant’s motion for closure is made, the court should consider whether there are alternate means reasonably available by which the fairness of the trial might be preserved without substantially interfering with the public’s right to be informed, and, further, whether closure can be limited to only those portions of the hearing which might be prejudicial. This record is barren of any evidence that such considerations were indulged below. Moreover, there was no demonstration by defendant’s counsel that an open hearing would surface any evidence interdicting the defendant’s right to a fair trial, nor were the petitioners afforded an opportunity to be heard wherein they might have articulated the magnitude of any genuine public interest in an open proceeding. Accordingly, we conclude that respondent Brown erred in ordering closure. As to the relief requested by petitioners, we conclude that relief with respect to a transcript of the closed hearing is moot (Matter of Times-Union of Capital Newspaper Div. of Hearst Corp. v Harris, 71 AD2d 333), and further, that injunctive relief with respect to future motions of like import is inappropriate. Next, while we are aware that we could convert this proceeding into an action for declaratory judgment for purposes of declaring that the action below was illegal (see Matter of Merced v Fisher, 38 NY2d 557), such action is unnecessary in light of the discussion above which illuminates our reasons for concluding that under the facts present here, the trial court erred. The petition should be dismissed, without costs.