54 A.D.2d 818 | N.Y. App. Div. | 1976
Petition unanimously granted, without costs, and respondent’s order vacated to the extent that it excludes the public and the press from the evidentiary hearing. Memorandum: Following Richard Marino’s well-publicized trial, he was found guilty of murder and conspiracy. Subsequently he moved pursuant to CPL 330.30 and 330.40 to set aside the verdict, alleging judicial error, prosecutorial and police misconduct, juror partiality and prejudice, and newly discovered evidence. Respondent, Hon. Donald J. Mark, Monroe County Court Judge, directed a hearing on the motion but prior to its commencement ordered, sua sponte, the public and the press to be excluded. Petitioner owns two local newspapers and a television station, all of which extensively reported Marino’s trial and pretrial proceedings. Although respondent did not alter the order of closure after affording petitioner an opportunity to be heard in opposition, he stayed the hearing on Marino’s motion, pending a review by this tribunal. Thereupon petitioner commenced this article 78 proceeding, seeking to vacate and prohibit enforcement of respondent’s order insofar as it precludes the public and press from attending the evidentiary hearing. Petitioner contends, inter alia, that the exclusionary order violates section 4 of the Judiciary Law and the constitutional guarantee of a public trial (US Const, 6th Arndt). This position, of course, conflicts with the clear right of a Trial Judge to close his courtroom in a criminal case in the interests of sound judicial administration (see People v Hinton, 31 NY2d 71; see, also, People v Jelke, 308 NY 56). In such a context