This opinion is uncorrected and subject to revision before

publication in the New York Reports.

No. 25 

The People &c.,

 Respondent,

 v.

Benny Garay,

 Appellant.

Adam J. Berstein, for appellant.

Patricia Curran, for respondent.

ABDUS-SALAAM, J.:

On this appeal, defendant asserts three main arguments: 

(1) that his right to counsel under the New York Constitution

(art. I, § 6) was violated in connection with the trial court's

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replacement of a sick juror with an alternate juror; (2) that the

court violated his right to a public trial under the Sixth

Amendment of the United States Constitution by failing to

consider reasonable alternatives to closure before ordering the

courtroom closed during the testimony of two undercover officers;

and (3) that the court erred in summarily denying his request for

a suppression hearing under CPL § 710.60(3). We conclude that

defendant's right to counsel claim was not preserved for

appellate review, and that the remaining claims lack merit. 

Defendant Benny Garay was tried for his alleged role in a

cocaine drug ring led by his co-defendant Lillian Rivera. They

were jointly tried. Garay was charged with conspiracy in the

second degree (Penal Law § 105.15); criminal possession of a

controlled substance in the first degree (Penal Law § 220.21

[1]); criminal possession of a controlled substance in the third

degree (Penal Law § 220.16 [1]); and criminal possession of a

controlled substance in the fifth degree (Penal Law § 220.06

[1]).

Several weeks after the trial had begun, the trial court

began the session by acknowledging that defendant Garay's trial

counsel, Mr. Conway, was not present. The court then referenced

an off-the-record discussion that was held that morning with both

counsel, as well as an off-the-record ex parte communication the

court had with a sick juror. The court stated that it had spoken 

with all the lawyers, including defendant's counsel, and had

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advised them that one of the jurors had called in sick, and that

the juror had stated that "in no way" could he make it to court

that day, even if the trial were adjourned until the afternoon. 

The judge stated that he was going to replace the sick juror with

the next alternate juror. Co-defendant Rivera's lawyer objected

to replacing the sick juror with an alternate and stated that he

had conferred with defendant's lawyer and that he "believe[d]" 

defendant's counsel "is agreeing" to the objection as well. 

Rivera's counsel suggested that the court postpone the trial for

one day in the hope that the sick juror might return, and he also

complained that discharging the sick juror would leave only one

remaining alternate juror. He noted that the court had

previously excused an alternate juror for psychological reasons

and he had not objected, but that he was objecting to excusing

this second juror. He argued that there were not many minorities

on the jury, and that one of two black jurors would now be

replaced by a white juror. 

The judge explained that the trial was already going beyond

the time that he had estimated for the jury, that he was

concerned about losing more jurors, and concluded that the sick

juror would be replaced. The court then directed that the jurors

be brought in, to which co-defendant's counsel inquired, "Judge,

are we waiting for [Garay's counsel]?" The record shows that

right after this inquiry, counsel entered the courtroom, and

thereafter the jury entered. After the jurors were seated, the

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court told an alternate juror: "You're going to take that seat

right over there, number ten. That will be your seat for the rest

of the trial." Defense counsel made no comment or objection. 

The People then called their next witness and the trial

proceeded. 

Garay was acquitted of every charge except for criminal

possession in the fifth degree. He was sentenced to time served,

having been incarcerated for 26 months.1 The Appellate Division

affirmed (107 AD3d 580 [2013]), and a Judge of this Court granted

him leave to appeal (22 NY3d 1040 [2013]).

We agree with the Appellate Division that defendant failed

to preserve his claim that he was deprived of his right to

counsel when the court replaced the sick juror with an alternate

juror. 

"For purposes of appeal, a question of law with respect

to a ruling or instruction of a criminal court during a

trial or proceeding is presented when a protest thereto

was registered, by the party claiming error, at the

time of such ruling or instruction or at any subsequent

time when the court had an opportunity of effectively

changing the same" (CPL 470.05[2]). 

The court's replacement of the sick juror in the presence of

defense counsel was not a mode of proceedings error which

"provides an exception to traditional preservation rules" (People

1His co-defendant Rivera was convicted of conspiracy in the

second degree, five counts of criminal sale of a controlled

substance in the third degree, and criminal possession of a

controlled substance in the first degree. She was sentenced to

an aggregate prison term of 20 years with five years of post

release supervision. 

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v Gray, 86 NY2d 10, 21 [1995]). 

This Court has applied the common sense principle that if

defense counsel is present to bring an error to the trial court's

attention, counsel must register a protest where the error, if

called to the court's attention, "would afford the trial court

opportunity promptly to rescind any directive violative of the

defendant's right of access to counsel or otherwise to cure the

error" (People v Narayan, 54 NY2d 106, 112 [1981]). We

reaffirmed that principle in People v Umali (10 NY3d 417,

[2008]). Both Narayan and Umali concerned a court's restriction

on defense counsel's right to confer with defendant in the course

of the trial. In Narayan, the court had imposed a ban on defense

counsel speaking with defendant concerning defendant's testimony

in the course of cross-examination. Umali involved a ban on

discussing testimony during a four-day recess. We held that in

order to preserve a claim involving a right to counsel for

appellate review, counsel was required to timely protest the

ruling. 

Here, although defense counsel was not present in court

while the judge was stating on the record that he intended to

replace the sick juror and counsel for co-defendant was objecting

to that replacement, the record shows that prior to arriving in

the courtroom, counsel was aware from his discussion with the

court that there was a sick juror and that the court had

previously excused an alternate juror for psychological reasons. 

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Most importantly, defense counsel was in the courtroom when the

judge told the alternate to take the seat of the sick juror. If

counsel had any objection to the replacement of the juror,

including a desire to be heard further on the issue, he had the

time and the opportunity to make his position known. It was

incumbent upon him to raise an objection at that time, before the

trial proceeded. Certainly, the better practice would have been

for the trial judge to await counsel's arrival before placing his

decision regarding the juror on the record. While, as the

dissent notes, defense counsel was absent during the on-therecord discussion about dismissing the juror, nonetheless,

counsel was present at the critical time when the sick juror was

being replaced by the alternate, and counsel did not raise any

objection concerning the right to counsel or otherwise, at a time

when the trial court had the opportunity to change course. Thus,

the preservation rule that we applied in Narayan and Umali

applies in this instance. 

The Appellate Division correctly distinguished this

situation from the facts of People v Strothers (87 AD3d 431 [1st

Dept 2011]), where the court commenced a suppression hearing in

the absence of defense counsel, who arrived halfway through the

testimony of a witness. In Strothers, because counsel was not

present when the deprivation occurred and thus could not lodge an

objection, the court rejected the People's argument that counsel

had been required to preserve his claim that defendant had been

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deprived of the right to counsel (id. at 433; see also People v

Margan, 157 AD2d 64 [1st Dept 1990][where trial judge directed

the prosecutor to begin direct examination of witness in the

absence of defense counsel, the error did not occur in the

presence of counsel, and thus the holding of Narayan is not

controlling]).

In sum, defense counsel's failure to object when the court

replaced the sick juror renders defendant's claim of deprivation

of the right to counsel unpreserved and thus beyond our review

(see People v Medina, 18 NY3d 98, 104 [2011]; People v Gray, 86

NY2d10, 19 [1995]).

Regarding the closing of the courtroom, the court conducted

a Hinton2 hearing prior to trial at which two undercover officers

testified in detail as to their activities working undercover,

their safety concerns about testifying in an open courtroom and

their belief that testifying in an open courtroom would

compromise their effectiveness as active undercover officers. 

After the testimony, the prosecutor requested that the courtroom

be closed for the testimony of the officers. Defendant opposed

the closing of the courtroom, and asked that his family be

allowed to attend in any event. At the close of the hearing, the

court found that both officers were "clearly active undercovers,"

2People v Hinton (31 NY2d 71, 75-76 [1972][while trial court

has inherent discretionary power to close the courtroom, that 

discretion is "to be sparingly exercised and then, only when

unusual circumstances necessitate it."])

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that they both had open undercover cases and had been threatened

during the course of their undercover work, and that they both

took precautions to protect their identities when they came to

court, such as using a side entrance to the courthouse.

The court concluded that the People had met their burden on

closing the courtroom for the testimony of the officers, but had

not met their burden on the exclusion of family members or

significant others. It ordered a partial courtroom closure,

allowing defendants' family members to attend all aspects of the

trial, including the testimony of the undercover officers,

provided defendants gave a list of the names of family members

who were expected to attend, and their relationship to

defendants. At trial, immediately preceding the testimony of one

of the undercover officers and the sealing of the courtroom, the

judge said that he "gather[ed]" by defendants' "silence" that

there was nobody there from their families attending that day,

and stated that if a family member were to arrive, "[j]ust let

[the court] know. We'll let them in."

On appeal, defendant does not challenge the adequacy of the

People's showing in support of the closure. Rather, he argues

that his Sixth Amendment right to a public trial was violated

because, he asserts, the trial court did not consider 

"reasonable alternatives" to closing the courtroom, which is one

of the four prongs comprising the standard for courtroom closure 

set out by the United States Supreme Court in Waller v Georgia

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(467 US 39, 48 [1984]). The Waller Court held: 

"[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"(467 US at 448). 

Defendant points out that the trial court did not articulate any

specific findings reflecting its consideration of alternatives. 

He relies on Presley v Georgia (558 US 209 [2010]), which held

that "trial courts are required to consider alternatives to

closure even when they are not offered by the parties"(id. at

214) and that trial courts must make findings "specific enough

that a reviewing court can determine whether the closure order

was properly entered"(id. at 214-215, quoting Press-Enterprise

Co. v Superior Court of Cal., Riverside Cty., 478 US 501, 510

[1986]). 

However, as defendant recognizes, this Court has rejected

the argument that United States Supreme Court precedent requires

a trial court to explain, on the record, the alternatives to

closure that it considered (People v Echevarria, 21 NY3d 1, 18

[2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we

have concluded that where the record establishes, as it does

here, the need to close a portion of the proceedings, "it can be

implied that the trial court, in ordering closure, determined

that no lesser alternative would protect the articulated

interest"(Echevarria, 21 NY3d at 10, quoting Ramos, 90 NY2d at

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504). We reject defendant's argument that Echevarria is

irreconcilable with Supreme Court precedent and that it sets

forth an unworkable standard, and we decline defendant's

suggestion that we overrule our precedent.

 Finally, we agree with the Appellate Division that the

trial court properly denied defendant's request for a hearing

based on his motion to suppress physical evidence. The police,

who were conducting an investigation of a large-scale cocaine

selling operation, had identified Rivera as the head of the

organization and defendant as her driver. On March 7, 2008, the

police heard, through a wiretap on Rivera's phone, a conversation

she had with Garay where she asked Garay to pick her up at her

house. Garay drove Rivera from the Bronx to Manhattan, where she

allegedly purchased a kilogram of cocaine. After they returned

to Rivera's house, he went inside her apartment and then returned

to the car and drove off. The police stopped Garay's car,

arrested him and searched him. After he was placed in a police

van, Garay was searched again and cocaine was found in his pants

pocket.

Garay was initially charged in a criminal complaint alleging

that he engaged in a drug selling conspiracy involving Rivera and

others. The complaint alleged that Garay drove Rivera on March

7, 2008, that when he was stopped by police he displayed a New

York City Police Department identification card and that the

police recovered a "quantity of cocaine" from his pants pocket. 

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At the arraignment, the prosecutor further alleged that Garay was

Rivera's driver and had a number of cars registered to his name

which had been associated with Rivera. She also alleged that

when Garay was arrested, he had cocaine that appeared to have

been cut from a kilogram that was found in Rivera's apartment. 

The indictment charged defendant, along with Rivera and others,

with overt acts in furtherance of a conspiracy to sell cocaine. 

The indictment was consistent with the allegations of the

criminal complaint and the allegations made at arraignment.

Defendant's motion for suppression was supported by an

affirmation by defense counsel which stated that defendant did

not consent to a search of his vehicle or his person, that he was

not committing a crime at the time he was detained, that he was

not engaged in any criminal conduct, and that no contraband was

in plain view. Counsel also stated that defendant was stopped

"pursuant to dropping off a family member," and that the police

did not have probable cause to search defendant. The People,

citing CPL § 710.60(1), opposed the motion on the ground that it

did not contain sworn allegations of fact necessary to warrant a

hearing. On appeal, Garay argues that the People's allegations

against him were sparse and unspecific, and that given these

deficiencies, defendant sufficiently challenged the allegations

of probable cause to arrest him by asserting that he was stopped

after dropping off a family member, was not engaged in any

criminal conduct and had no contraband in plain view.

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Defendant's allegations failed to raise a legal basis for

suppression. CPL § 710.60(1) provides that a motion to suppress

made before trial must state the ground of the motion and contain

sworn allegations of fact supporting such grounds. The court may

summarily deny the motion if "[t]he motion papers do not allege a

ground constituting legal basis for the motion," or, with two

exceptions not relevant here, "[t]he sworn allegations of fact do

not as a matter of law support the ground alleged." 

As we held in People v Mendoza (82 NY2d 415 [1993]), the

factual sufficiency of a suppression motion "should be determined

with reference to the face of the pleading, the context of the

motion, and defendant's access to information" (id. at 422). We

agree with the People that in this context, defendant's simple

denial that he was not engaged in any criminal conduct at the

time he was stopped did not raise any issue of fact requiring a

hearing. It was defendant's role in the conspiracy as Rivera's

driver and his conduct in transporting her at the time of the

purchase of the kilogram of cocaine that provided probable cause

to arrest him. Under those circumstances, it was incumbent upon

defendant to refute the allegations in order to obtain a hearing. 

Here, as in the context of a buy and bust situation, factual

allegations of innocent conduct at the time of the arrest do not

mandate a hearing because in the typical buy and bust situation,

probable cause is "generated by the drug transaction," and

therefore, "an allegation that defendant was merely standing on

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the street at the time of the arrest does not frame a factual

issue for the court's determination" (People v Jones 95 NY2d 721,

726 [2001], quoting Mendoza, 82 NY2d at 428). Thus, defendant's

claim of innocent conduct at the time of the arrest, in the face

of allegations that he was part of a drug dealing conspiracy, was

insufficient to establish entitlement to a hearing. 

Accordingly, the order of the Appellate Division should be

affirmed.

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People v Benny Garay

No. 25 

LIPPMAN, Chief Judge (dissenting):

 Because this Court does not require preservation for

violations of the right to counsel where counsel is absent during

crucial parts of proceedings, I would reach the merits of

defendant's constitutional claim. Thereupon, I would hold that

defendant's right to counsel was violated when the court decided

to dismiss a juror in defense counsel's absence.

As this Court has repeatedly held, "a claimed

deprivation of the State constitutional right to counsel may be

raised on appeal, notwithstanding that the issue was not

preserved" (People v Kinchen, 60 NY2d 772, 773 [1983]; see People

v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are

excepted from the general rule that unpreserved issues cannot be

reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985]

[violation of right to counsel constitutes “mode of proceedings

error” and does not require preservation]). In People v Grant

(91 NY2d 989 [1998]), this Court permitted a defendant to raise a

right to counsel claim that had not been raised in the lower

courts, "follow[ing] the settled rule that a claim of deprivation

of the fundamental right of counsel may be raised on appeal

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though not specifically preserved below" (Arthur Karger, Powers

of the New York Court of Appeals § 21:11 at 779, n 19 [3d ed rev

2005]).

As is made clear from the record, the court had twice

decided to excuse the sick juror outside the presence of defense

counsel, hearing arguments against dismissal, and supplying

reasoning justifying the dismissal. After making its decision to

replace the sick juror, the court stated: "I wish we [could]

replace [Garay's counsel]. Unfortunately we can't." Garay's

counsel entered moments later, after all but the finishing

touches had been completed in his absence. The majority assumes

defense counsel was aware of everything taking place in his

absence, but that is unwarranted on this record. While

acknowledging that "[c]ertainly, the better practice would have

been for the trial judge to await counsel's arrival before

placing his decision regarding the juror on the record," the

majority maintains that defense "counsel was present at the

critical time when the sick juror was being replaced by the

alternate, and counsel did not raise any objection concerning the

right to counsel or otherwise, at a time when the trial court had

the opportunity to change course" (majority op., at 6). 

Despite the cases to the contrary, the majority points

to two cases in which this Court held that a right-to-counsel

claim must be preserved (see People v Narayan, 54 NY2d 106, 112

[1981]; People v Umali, 10 NY3d 417, 423 [2008]). In both

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Narayan and Umali, the court denied defendant the right to confer

with defense counsel during trial, and we held that the

defendants' right to counsel claims were unpreserved to the

extent that counsel did not object. However, those cases are

distinguishable because, there, trial counsel was "presen[t] 

. . . at the time of the trespass on defendant's right to his

assistance" (Narayan, 54 NY2d at 112; see Umali, 10 NY3d at 423). 

The majority overlooks this crucial distinction and apparently

assumes that the court's decision to dismiss the juror -- made in

defense counsel's absence -- was a revocable decision and thus

unreviewable, a determination that cannot be drawn from these

cases (see majority op., at 6). Significantly, the relevant

"critical time" at which defendant was deprived of his right to

counsel was not, as the majority posits, when the sick juror was

actually replaced by the alternate, but, at the very least, when

the court made its decision to dismiss the juror. This is

reflected in CPL 270.35 (2) (b), which provides that "[t]he court

shall afford the parties an opportunity to be heard before

discharging a juror." 

The majority also concludes that the Appellate Division

correctly distinguished the circumstances here from the facts of

People v Strothers (87 AD3d 431 [1st Dept 2011]). In Strothers,

defense counsel arrived halfway through the proceeding, but the

court held that counsel could not lodge an objection while

absent, and thus preservation was not required (see 87 AD3d at

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433). The deprivation of counsel in Strothers occurred at the

commencement of the proceeding, with defense counsel arriving

halfway through, and here, it occurred when the court made its

decision to dismiss the juror (majority op., at 6 [citing 87 AD3d

at 433]). Here, the arguments against dismissal of the juror had

been heard and rejected, and the issue decided with the only task

remaining being the seating of the alternate juror. Defense

counsel was absent during the entire period and very possibly was

unaware of the proceedings taking place without him. 

In People v Margan, where the trial judge ordered the

prosecutor to begin direct examination of a witness in the

absence of defense counsel, the Appellate Division correctly

followed "the general rule that a violation of the right to

counsel may be raised, as a question of law, for [the] first time

on appeal" (157 AD2d 64, 70 [2d Dept 1990]). The important

distinction is that in Strothers, Margan, and here, defense

counsel was absent from the courtroom during the proceeding, but

was present in Narayan and Umali. 

Affirming the judgment "on preservation grounds will

only encourage prosecutors in their already well-established

tendency to pounce on every arguable imperfection in a defense

lawyer's argument as a barrier to deciding a case on the merits"

(People v Beasley, 16 NY3d 289, 293 [2011] [Smith, J.,

concurring]). 

I would hold that preservation is not required here,

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and upon reaching the merits, I would conclude that defendant's

right to counsel was violated. 

"This [C]ourt has consistently exercised the highest

degree of vigilance in safeguarding the right of an accused to

have the assistance of an attorney at every stage of the legal

proceedings against him" (People v Cunningham, 49 NY2d 203, 207

[1980]). "[S]ince most constitutional rights are not

self-executing, the right to counsel may be the most basic of

all" (People v Hodge, 53 NY2d 313, 317 [1981]). Criminal

Procedure Law § 270.35(2)(b) states that "[t]he court shall

afford the parties an opportunity to be heard before discharging

a juror." A court has discretion to replace an absent juror "if

the court determines that there is no reasonable likelihood such

juror will be appearing . . . in court within two hours of the

time set by the court for the trial to resume" (CPL 270.35 [2]),

but it cannot do so absent defense counsel. 

In Hodge, the trial court insisted that the defendant

proceed with a preindictment preliminary hearing despite defense

counsel's absence (see 53 NY2d at 316-317). The People asserted

that because the defendant was subsequently indicted, there was

no harm and "any infirmities that occurred at the flawed hearing

may be excused" (id. at 319). We held there that "the test must

be not what the hearing did not produce, but what it might have

produced if the defendant's right to counsel had not been

ignored" (id. at 321). "[T]he result of such inquiry would have

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to be pure speculation" (id.). 

In People v Johnson (189 AD2d 318 [4th Dept 1993]),

reversal was "mandated" where a trial court discharged a sworn

juror prior to the impanelment of the entire jury "in the absence

of defense counsel" (id. at 320). Because "[j]ury selection is a

critical stage of a criminal proceeding," "the unique,

indispensable presence of at least the 'single-minded counsel for

the accused' is minimally necessary to safeguard" the defendant's

"constitutional right to a particular jury chosen according to

law, in whose selection he has had a voice" (id. [quotation marks

and citations omitted]).

The denial of the right to counsel at trial "is of

constitutional dimension" and is not subject to harmless error

analysis (Hodge, 53 NY2d at 320; People v Hilliard, 73 NY2d 584,

587 [1989]). As this Court recognized, "[t]he right to have the

assistance of counsel is too fundamental and absolute to allow

courts to indulge in nice calculations as to the amount of

prejudice arising from its denial" (see People v Felder, 47 NY2d

287, 296 [1979]; see also Perry v Leeke, 488 US 272 [1989]).

Here, the court's decision to replace the ill juror

must be made while defense counsel is present. Indeed, the

statute directs that counsel "shall" be afforded an opportunity

to object (see 270.35 [2][b]). Further, trial courts should not

disregard this Court's long history of safeguarding the right to

counsel (Hodge, 53 NY2d at 317). As it was in Hodge, it is

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inappropriately speculative here to assert that the juror would

have been discharged even if counsel had been present (see Hodge,

53 NY2d at 320; Felder, 47 NY2d at 296). 

For these reasons, I would reverse the Appellate

Division and remit for a new trial. 

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Abdus-Salaam. Judges Read,

Pigott and Rivera concur. Chief Judge Lippman dissents in an

opinion in which Judges Stein and Fahey concur.

Decided March 31, 2015

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