Rose Ann BROWN, Petitioner-Appellant, v. Anginell ANDREWS, Superintendent of Albion Correctional Facility, Respondent-Appellee, 220 F.3d 634

PER CURIAM. This is a petition under 28 U.S.C. § 2254 challenging a New York State narcotics conviction on the ground that the trial judge ordered the courtroom closed during the testimony of an undercover police officer under circumstances that do not conform to the constitutional standards. The district court denied the petition. A panel of this court reversed, directing that the petition be granted. We voted to rehear the appeal in banc.

At the in banc argument, the Attorney General of the State of New York took the position, like the petitioner, that the hearing evidence relating to the undercover officer’s personal safety and effectiveness did not comport with governing standards developed in the opinions of the Supreme Court and this court. Because both sides take the same position, we have no dispute to adjudicate that warrants consideration by the in banc court. Accordingly, the in banc court dissolves itself and remands the matter to the panel for adjudication in the light of the Attorney General’s concession.