we have two motions scheduled for argument before our regular day calendar this morning i believe that counts was present in the second of those motions so he can with crews for says helen back number eighteen morning your honour's may please a court my name is stephen bercow and i represent petitioner julio cruz on behalf of legal aid society at the outset i would like to thank the court for granting oral argument on petitioners application for as a ticket of appeal ability your honors petition who seeks a c e o a on two questions procedural and substantive in the context of the sixth amendment claim they lost his right to a public trial when the trial judge had the courtroom sealed pursuant to an unnoticed hinton hearing the procedural question here turns on whether a criminal defendant may waive his right to a public trial thirty eight years ago the supreme court in richmond newspapers determined that a criminal defendant did not have a right must have a public trial it follows that his sixth amendment right to a public trial is non waive will turn federally i would note that in the five years as litigation has been pending the state has never addressed the applicability of richmond newspapers to petitioners public truckling am i right that there was no contemporaneous objection made by the defendant and these were state court proceedings in which the new york law requires a contemporaneous objection in order to sustain that kind of this kind of challenge is that right that's i would say partially right your honor in the sense that there was no contemporaneous objection but the new york law is faulty as is downs against late and i try to make that point in my papers don's against in new york case never did waiver analysis so there is no logic to say that a defendant who cannot ask a judge for a private trial may never nevertheless forfeit that right by virtue of his lawyers non objection when he is trying to object to assert the public's right to the trial because he was present right in this had to do with a confidential informant who was continuing to participate in those kind of place a system activities he was present with that part that's correct he was present certainly but the public was excluded and that's a matter of record there was a courtroom of officer posted outside the courtroom and nobody came in it was to protect the informant  there a sense really was to protect the informant but my point is that the entire hinton hearing was a secret hearing because no prior notice had been given to the public as judge newman i'm sure well but but that was that case was based upon richmond newspapers and the fault in richmond newspapers if you look at footnote four of the court's opinion there was lack of notice an opportunity to be h that was a procedural flaw in the case the court vacated the order in that case and were not what our point is what my point is is that you cannot then close the courtroom based upon a no order if the order is invalid as to the public then  certainly it cannot be upheld as to the defendant where nobody has come into the courtroom on your theory every time he closes a courtroom to protect the identity of an arm and if the defendant is smart enough not to object he gets a new trial ten years later but what i would say judge i would rephrase that and say every time the state wants to close the courtroom as it's required in this circuit they must post a notice they must docket a notice and then there will be no objection because then this then the the public and the press who have a first amendment right of old well here i would say that the default shouldn't be applied because there's no there there there's no requirement to waive the right and under this court's prior decision a a right that's non wave of bull where a judge has that a positive obligation to protect the right is not forfeited by a lawyers lack of objection let the press walk out of the process all right because the press would have absolutely no idea that the courtroom was closed in if they in fact they weren't given notice your honour's in your eyes at this juncture i would just i would like to remind the court that the this application is for a c and i think i've demonstrated that jurors of reason can disagree at the very least georgia's of reason can disagree on this matter and that it's worthy of review by a panel of this court thank you good morning market c p s on behalf of respondent the district court in this case correctly rely upon downs of late that address this very issue in this case regarding the  whether or not preservation must be required for a public trial claim the district the district court correctly held that that this is something that's firmly rooted in new york law new york law in people versus alvarez has directly rejected the claim the petitioner is attempting to make here that the failure to the closure of a courtroom is a mode of proceeding error that does not need to be preserved pilate was wrongly decided and provides no real reason in the paper in his papers for that while richmond newspapers certainly held that vacated the order in that particular case richmond newspapers did not the address the issue of whether or not a criminal defendant must preserve specifically preserve his his claim of public trials and i'll in a decision as a district why downs be laid should be completely disregarded in this case he also petitioner also relies upon this court's i believe nine hundred seventy seven decision and suggs but socks was a completely different set of fact pattern in that particular case this this court held that there is no need for preservation of the petitioners claim that his plea was not voluntary and in that case the trial court had every reason to believe that his plea was not voluntary because the petitioner mr suggs gave very bizarre answers during the plea colloquy and nonetheless the court accepted the plea and this court said that there was no preservation that was required but there would be no preservation required in any case and in that case and this circuit approves the people versus lopez line of state court cases finding that no preservation is required in those cases because the situation where a petitioner where the trial court has reason to believe that the plea is not knowing involuntary so the fact that really does not stand for the proposition the petitioner is saying in this case and so there is no real reason to ignore controlling law that's definitely directly on point and looking to hundred seventy eight case that has no relation to this case i gather he would say that nothing has changed since those decisions that would suggest that even at the lower level of a certificate of appeal ability we should  invite further appellate review that's correct new york state law is still firmly established alvarez was a two thousand and twelve decision there is a two thousand and eighteen decision in people versus roberts that also say that preservation of a public i don't know if new york court to do put it on the docket but i know that in this predict particular case there was an announcement in open court least three times that the hinton hearing would have been held and we believe that was twice during  and i believe that was also right before the undercover officer was to testify at trial so anyone who may have been interested in that issue and wanting to make a claim that their first amendment right to access was denied would have been in a position to to address the to address that claim and to make an objection and certainly in this case petitioner made his objections to closure he the court held the hintin hearing and fully addressed the issues and addressed the the four waller factors and found that that the state had a compelling interest in closing the court during that particular test under waller as the saying the test of course came from press enterprise it's so the test the court did what it needed to do constitutionally to ensure the petitioners public trial right was insured so in addition we also