Waller test in New York

2013Although 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. .

2013Although 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. .

2025As to Waller's claim for overcharges based on defendant's withdrawal of a rent concession in his renewal lease, the complaint adequately alleged facts that could support a finding that the two-month concession was in fact a preferential rent by another name ( see Chernett v Spruce 1209, LLC , 200 AD3d 596, 597 [1st Dept 2021]).

2025As to Waller's claim for overcharges based on defendant's withdrawal of a rent concession in his renewal lease, the complaint adequately alleged facts that could support a finding that the two-month concession was in fact a preferential rent by another name ( see Chernett v Spruce 1209, LLC , 200 AD3d 596, 597 [1st Dept 2021]).

2008Thus, in order to establish that closure is no broader than necessary with respect to a defendant’s family member, the prosecution must show a “substantial probability” that the undercover officer’s safety would be jeopardized by the presence of the family member during the undercover’s testimony (Nieves at 431 ), and the threat must be particularized as to each family member sought to be excluded (see Nieves at 430-431 ; People v Gutierez, 86 NY2d 817, 818 [1995]; People v Garcia, 271 AD2d 81, 84 [2000], affd 95 NY2d 946 [2000]).

2008Thus, in order to establish that closure is no broader than necessary with respect to a defendant’s family member, the prosecution must show a “substantial probability” that the undercover officer’s safety would be jeopardized by the presence of the family member during the undercover’s testimony (Nieves at 431 ), and the threat must be particularized as to each family member sought to be excluded (see Nieves at 430-431 ; People v Gutierez, 86 NY2d 817, 818 [1995]; People v Garcia, 271 AD2d 81, 84 [2000], affd 95 NY2d 946 [2000]).

2008The Court of Appeals has also recognized that a criminal defendant’s interest in having the courtroom open to members of his or her family is a compelling one (Kin Kan at 59 ), which necessitates even more careful consideration of the Waller factors (see Nieves at 430 [where trial court is made aware that defendant would like to have family present, exclusion of those individuals must be necessary to protect the interest advanced by the People in support of closure]).

2008The Court of Appeals has also recognized that a criminal defendant’s interest in having the courtroom open to members of his or her family is a compelling one (Kin Kan at 59 ), which necessitates even more careful consideration of the Waller factors (see Nieves at 430 [where trial court is made aware that defendant would like to have family present, exclusion of those individuals must be necessary to protect the interest advanced by the People in support of closure]).

2008Thus, in order to establish that closure is no broader than necessary with respect to a defendant’s family member, the prosecution must show a “substantial probability” that the undercover officer’s safety would be jeopardized by the presence of the family member during the undercover’s testimony (Nieves at 431 ), and the threat must be particularized as to each family member sought to be excluded (see Nieves at 430-431 ; People v Gutierez, 86 NY2d 817, 818 [1995]; People v Garcia, 271 AD2d 81, 84 [2000], affd 95 NY2d 946 [2000]).

2008Thus, in order to establish that closure is no broader than necessary with respect to a defendant’s family member, the prosecution must show a “substantial probability” that the undercover officer’s safety would be jeopardized by the presence of the family member during the undercover’s testimony (Nieves at 431 ), and the threat must be particularized as to each family member sought to be excluded (see Nieves at 430-431 ; People v Gutierez, 86 NY2d 817, 818 [1995]; People v Garcia, 271 AD2d 81, 84 [2000], affd 95 NY2d 946 [2000]).

2003The evidence elicited at the hearings pertaining to the potential witnesses’ extreme fear of testifying in open court was sufficient to establish an overriding interest, satisfying the first prong of the Waller test (see People v Ming Li, 91 NY2d 913, 917 [1998]).

2003The evidence elicited at the hearings pertaining to the potential witnesses’ extreme fear of testifying in open court was sufficient to establish an overriding interest, satisfying the first prong of the Waller test (see People v Ming Li, 91 NY2d 913, 917 [1998]).

2003The People made a factual showing that defendant’s right to a public trial was not being sacrificed for less than “a substantial probability of prejudice to a compelling interest” (People v Jones, 96 NY2d 213, 217 [2001]).

2003The People made a factual showing that defendant’s right to a public trial was not being sacrificed for less than “a substantial probability of prejudice to a compelling interest” (People v Jones, 96 NY2d 213, 217 [2001]).

2001As one court has opined, “[i]ndeed, in many cases there will be an appropriately proportional relationship between the scope of a closure and the risk that justifies the closure precisely because the closure is as narrowly tailored as reasonably possible” (Bowden v Keane, 237 F3d 125, 130, n 2 [2d Cir] [emphasis in original]).

2001As one court has opined, “[i]ndeed, in many cases there will be an appropriately proportional relationship between the scope of a closure and the risk that justifies the closure precisely because the closure is as narrowly tailored as reasonably possible” (Bowden v Keane, 237 F3d 125, 130, n 2 [2d Cir] [emphasis in original]).

1997We conclude that, under the circumstances now presented, it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest (see, People v Bamberg, 51 NY2d 868, 870 [trial court’s disposition of suppression motion may sufficiently imply its findings]; People v Alfinito, 16 NY2d 181, 186 ).

1997We conclude that, under the circumstances now presented, it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest (see, People v Bamberg, 51 NY2d 868, 870 [trial court’s disposition of suppression motion may sufficiently imply its findings]; People v Alfinito, 16 NY2d 181, 186 ).

1997Importantly, these cases did not address application of the Waller test where the record makes no mention of alternatives but is otherwise sufficient to establish the need to close the particular proceeding (see also, Matter of Associated Press v *504 Bell, 70 NY2d 32, 39 [closure improper, where no findings that defendant’s rights would be prejudiced by publicity that closure would prevent or that reasonable alternatives could not adequately protect those rights, and such findings would not have had support in the record]).

1997Importantly, these cases did not address application of the Waller test where the record makes no mention of alternatives but is otherwise sufficient to establish the need to close the particular proceeding (see also, Matter of Associated Press v *504 Bell, 70 NY2d 32, 39 [closure improper, where no findings that defendant’s rights would be prejudiced by publicity that closure would prevent or that reasonable alternatives could not adequately protect those rights, and such findings would not have had support in the record]).